Chapter 4. Basic attributes of administrative responsibility
As a result of studying this chapter, the student must:
o know elements of the administrative offense;
o be able to establish the presence of qualifying signs that delineate the offense from the crime;
o own a proper amount of theoretical skills, allowing to determine the presence of signs that decriminalize offense, namely: the state of extreme necessity, insanity, insignificance.
4.1. The concept of an administrative offense
4.1.1. Correlation of administrative and other public offenses
An administrative violation (misdemeanor) is an unlawful, guilty act of a person infringing on public interests, private, state, municipal and other types of property, rights and freedoms of citizens, for which administrative responsibility is provided by federal law.
The wrongfulness of the act is the main criterion of an administrative offense, its secondary, derived from the indicated, legal criterion is the assessment of the consequences of the offense. The qualification of the offense is carried out irrespective of the harmfulness of the act, however, in cases stipulated by the Special Part of the Code of Administrative Offenses, the qualification of the offense is possible only with the infliction of property damage, moral or physical (corporal) harm or reputational harm.
Illegal inaction consists in non-fulfillment or inadequate performance by a physical person of subjective duties, as well as public or private-law powers (with respect to officials). For the non-compliance of the official with the terms for the implementation of the procedural actions established by the Administrative Code (that is, if they are overdue), it is unlawful inaction. The CAO defines private-law and national interests, the protection of which is ensured by the application of sanctions to violators: the legislator determines the measures of due behavior of citizens, encouraging them to lawful actions.
Many administrative misdeeds are correlated with crimes, for example art. 20.1 CAO (petty hooliganism) and art. 213 of the Criminal Code (hooliganism), art. 7.27 CoAP (small theft) and part 1 of Art. 158 of the Criminal Code (theft), part 1 of Art. 14.12 CAO (fictitious bankruptcy) and art. 197 of the Criminal Code (fictitious bankruptcy). In these cases, signs of direct correlation are revealed, when the offenses indicated in the dispositions of the legal norms of the Code of Administrative Offenses correspond to the terminologically identical names of crimes. The qualification of misdemeanors and crimes is due to the peculiarities of socially dangerous consequences of the act - causing property damage, physical (corporal), moral or reputational harm.
Indirect correlation of misdemeanors and crimes is revealed much more often. Since it is impossible to establish a conceptual correspondence between an offense and a crime, in these cases it is necessary to interpret the legal norm and fix the socially dangerous consequences of the act.
Thus, in the sense of Part 3 of Art. 2.1 Code of Administrative Offenses in the qualification of an offense may reveal signs of an administrative offense (misdemeanor) or a criminal offense.
Public danger is the main attribute of an administrative offense that delimits a misdemeanor from a crime.
The most important sign of an administrative offense is unlawfulness - a socially dangerous act infringes upon the legally protected public interests, rights and freedoms of citizens.
The commission of an administrative offense entails the application of a special public sanction - administrative punishment. In this case, violators are subject to measures of coercive coercion, involving property and non-material encumbrances, commensurate with the socially dangerous consequences of the act. Administrative penalties are only a partial version of public sanctions, including also criminal penalties, fiscal and tax sanctions, and disciplinary punishments. Unlike administrative and criminal punishments, involving both property and non-material encumbrances, the consequence of the application of budgetary and tax sanctions is the establishment of property rights violations (see Article 282, paragraph 1-3, clause 2, Article 284 BK, art. . 114 NC).
Administrative and criminal penalties are correlated on the basis of various attributes, the main ones are the prerequisites and legal consequences of applying punishment.
The use of administrative punishments entails incommensurably smaller encumbrances of the rights of the perpetrator, in contrast to property and non-material restrictions imposed by the use of criminal punishment.
Summarizing what has been said, we can distinguish the following common features inherent in administrative and criminal penalties:
o Criminal penalties, as well as most types of administrative punishments, are appointed only by court order;
o enforcement of administrative and criminal penalties is provided by measures of moral and physical coercion;
o The use of administrative and criminal penalties entails the restriction of the rights and freedoms of the offender until their complete (temporary or permanent) termination.
According to the Code of Administrative Offenses, the use of administrative punishment in the form of confiscation of a thing that was the instrument of committing or the subject of an administrative offense means the loss by the infringer of all the powers of the owner in relation to the confiscated thing. The application of other administrative punishments provided for by the Code entails a temporary restriction of constitutional rights and freedoms; similar are the consequences of the appointment of criminal penalties in the form of deprivation of the right to occupy certain positions or engage in certain activities, restrictions on military service, imprisonment for a certain period and some others. The commonality of administrative and criminal penalties is in the peculiarities of the time limit: the term for the restriction of rights and freedoms is conditioned by the verdict of the court (with respect to crimes) or by a judge's decision to impose an administrative penalty (in committing offenses).
However, the indefinite encumbrance of rights in accordance with the Code of Administrative Offenses extends only to the property rights of the offender; In contrast, the imposition of criminal penalties in the form of life imprisonment or the death penalty entails the indefinite termination of constitutional rights, as well as property and personal non-property rights, the implementation (protection) of which is incompatible with the punishment imposed.
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