Qualification of administrative offense, Circumstances mitigating...

Chapter 8. Administrative Offense Qualification

As a result of studying this chapter, the student must:

o know circumstances that are taken into account when imposing an administrative penalty

o be able to qualify the existence of circumstances mitigating and aggravating administrative responsibility;

o own practical skills in the qualification of an administrative offense and the imposition of administrative punishment commensurate with the harmfulness of the act.

8.1. Circumstances that mitigate administrative responsibility

8.1.1. Features of the qualification of circumstances mitigating responsibility

In determining the circumstances that mitigate the responsibility for an administrative offense, there are signs that allow us to qualify the degree of public danger of misconduct, the presence of which allows applying less burdensome sanctions to the offender.

According to the meaning of the Code of Administrative Offenses, such circumstances are taken into account immediately before the appointment of punishment, when the presence of signs of the composition of an administrative offense has already been revealed.

One of the circumstances that mitigates responsibility is a person's voluntary communication of an administrative offense committed by him. To qualify this circumstance, it is necessary to establish that the offender's treatment in law enforcement, other public bodies or their officials with such a message is a deliberate violent act of the offender. The form of the message at the discretion of an individual or a representative of a legal entity can be both written and verbal, but in any case it should be addressed to the appropriate jurisdictional body authorized to conduct proceedings in the case of an administrative offense. The repentance of the person who committed the offense reflects his negative perception of the fact of the offense and the harm done to him and is a consequence of the offender's personal assessment of the misdemeanor committed by him. The intruder proceeds from his own world view, which characterizes his negative attitude towards misconduct. Repenting a person under the influence of measures of moral or physical coercion means the absence of circumstances that mitigate the responsibility.

Mitigating circumstances include the prevention of the harmful consequences of the offense, the voluntary reparation of the damage caused or the elimination of the harm caused, the assistance of the guilty person in the law enforcement activity of the jurisdictional body, as well as the voluntary execution by the person of the order to eliminate the violation. To prevent the occurrence of harmful consequences, an individual can only in case of voluntary or involuntary refusal to commit an offense, i.e. before it is committed. Since it is impossible to prevent the socially dangerous consequences of the offense in any other way, a person can not be convicted for lack of an event and for the composition of an administrative offense; the proceedings on the case of an administrative offense in this case is excluded (see clauses 1, 2 of article 24.5 of the Code of Administrative Offenses). In contrast to the above features of harm prevention, compensation for harm caused by an offense, or its elimination is possible only in the case of an already committed administrative violation. Voluntariness in this case means that the person acts independently, without external coercion. However, it should be borne in mind that the voluntary compensation of the infringer of damage to property damage, compensation for moral damage is possible only at the stage preceding the issuance of the decision to impose an administrative penalty.

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