Property prerequisites for corporate offense - Administrative liability

6.2.8. Property prerequisites for corporate wrongdoing

The presence or absence of subjective criteria for guilt can also be due to corporate activities proper, namely, its property and financial prerequisites. Identification of such prerequisites is one of the essential conditions of jurisdictional activity. In the process of public proof of guilt, the establishment of property factors of misconduct is an indispensable attribute of the proceedings in the corporate offense case. With literal interpretation of Part 3 of Art. 4.1 of the Administrative Code, the legislator sees differences in the status of the property and financial preconditions of the offense, despite their obvious correlation and co-ordination. The financial position of a legal entity characterizes not only its property status in general, it indicates its potential in the business or non-profit field. Nevertheless, in order to ensure pragmatic needs in the field of law enforcement, it is necessary to take into account differences in the interpretation of these conjugate concepts. The property status of a legal entity, within the meaning of Part 3 of Art. 4.1 of the Administrative Code, includes the availability of materialized property assets, represented in the form of real estate and movable property used for its intended purpose. These property assets include traditional real estate - buildings, structures of the organization's governing bodies, as well as its branches and representative offices. In order to ensure the activities of commercial organizations, such properties include real estate necessary for production and economic activities, and for non-profit organizations - buildings, facilities necessary for the provision of public services and other socially significant functions.

Movable property assets in this case include traditional movable items necessary to ensure the target corporate activities - office equipment, vehicles and other movable items intended to provide administrative needs of the organization's apparatus, its officials and employees. Taking into account the dualistic perception of property assets in accordance with Part 3 of Art. 4.1 of the Code of Administrative Offenses, in this case the movable property does not include money and securities.

The attributes of corporate property are also intangible property objects, namely, objects of intellectual property and rights to them.

For the essence of administrative proceedings, it does not matter whether the status of property is in full or its individual civil powers of possession, use and disposal. In the process of considering the case of a corporate offense, it is necessary to establish a causal link to the fact of committing an offense with the property status of a legal entity, even in cases where the organization is vested with the right of operational control or the right of economic management in relation to the property assigned to it, the owner of which it is not. When qualifying property factors, both positive and negative factors that indicate the successful operation of the organization or characterize it as an unscrupulous participant in civil or public law activities should be taken into account. The fact that the organization has the necessary property opportunities for lawful activity shows first of all that it had proper property prerequisites for observing the norms and rules in violation of which it is suspected. The representative property status of the offending organization testifies to the special social significance of the offense. Formally, the availability of property prerequisites for the lawful activity of the organization-violator can not be considered in the context of circumstances aggravating administrative liability, since their exhaustive list is established by Part 1 of Art. 4.3 of the Code of Administrative Offenses, but the judge must take into account such assumptions in accordance with Part 3 of Art. 4.1 and the right to assign the most burdensome administrative penalty.

Violation of the organization rules and regulations, for non-observance of which the administrative responsibility is established, may be due to the unfavorable property status of the organization. As legal facts that are qualified on these grounds, one should take into account the existence of civil circumstances burdening corporate property rights, for example, the termination of the lease agreement for the use of an office space, due to the reorganization of a legal entity, or the impossibility of timely payments by the organization of rental payments, undoubtedly, burdens its property position. When confirming the causal link between the onerous property status of the organization and the fact of the offense, namely, in the presence of evidence supporting the conditionality of the offense by the organization's unfavorable property status, such an offense can not be imputed to it in responsibility. In this case there are no subjective criteria for the qualification of guilt, since such a legal entity could not act lawfully and its failure to comply with the rules and regulations is due to the burdensome property position of the organization and under such circumstances this mode of its functioning is legitimate.

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