Qualification of guilt, Qualification of individual...

CHAPTER 6. Qualification of Guilt

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

o know the qualifying signs of individual and corporate guilt;

o be able to establish the presence of characteristics attributable to the responsibility of an individual or organization, to distinguish them from characteristics that are incompatible with the qualification of guilt;

o own practical skills in the qualification of the guilt of public or private legal entities and individuals.

6.1. Qualification of individual guilt

6.1.1. Prerequisites for individual fault recognition

The Administrative Code establishes various signs of guilt in relation to the qualification of an individual and corporate offense.

The qualification of individual guilt is due to the presence of psychological and didactic criteria. The psychological criteria of guilt in the form of intent and negligence are unified and applied in all cases of qualification of individual guilt. The presence of formally legal (didactic) criteria of guilt is conditioned by political and legal prerequisites. Political prerequisites are the dominant factor determining the formation and development of any branch of public law. In accordance with them, persons involved in power activity determine the selective use of public coercive measures, guided by the corporate interests, the most important of which is to ensure the stability of power, for this purpose, appropriate methods of legal regulation are determined, and thus, legal prerequisites for qualification are established guilt. In accordance with formal legal criteria, the qualification of individual guilt is due to the presence of six groups of individuals with different jurisdictional status, namely, private and public law officials (Article 2.4), individuals of law enforcement and military service (see Parts 1, 2 2.5), officials of the civil service (Part 2, Article 1.4), minors (Part 2, Article 2.3), individual entrepreneurs and foreign individuals (Part 3, Article 2.6). For the three groups referred to above, it means officials with different jurisdictional rights and responsibilities, depending on the position of law enforcement, military and state civil service they replace. For the qualification of an individual act committed by an individual of one of the groups considered above, the presence of psychological criteria for guilt is not a dominant factor. The offense can not be imputed to foreign physical persons and public service officials immune from administrative responsibility, and less burdensome public sanctions are applied to individuals of law enforcement and military service, as well as minors, instead of administrative coercion measures. The existence of immunity from administrative responsibility means the granting of a physical person to jurisdictional rights, while at the same time exempting him from jurisdictional duties. Such an individual has the right to participate in the implementation of public procedures, for example, to appeal the application of administrative restraint measures in the form of detention or inspection of a vehicle, and the complaint may also be verbal, in which case an individual demands the termination of coercive actions resulting from the application of such measures. >

The political prerequisites for the introduction of immunity always dominate and predetermine the content of all subsequent jurisdictional actions. The immunity from administrative responsibility is conditioned by the political expediency of not applying to public physical persons public sanctions imposed on other physical violators. In respect of foreign individuals, immunity is established on the basis of an international treaty, i. and in this case the immunity is conditioned by the political initiative of the head of state. The establishment of immunity means the introduction of selective methods for the application of the rules of law, according to which an offense can not be imputed to a public official.

Thus, the qualification of an individual fault takes into account psychological or didactic criteria for guilt, the application of the latter is legally formalized and is related to the peculiarities of legislative regulation, according to which specific jurisdictional criteria for individual guilt are established. Depending on the nature of the act, individual entrepreneurs are brought to justice as officials, as independent subjects of administrative responsibility, or as corporate entities (Article 7.34, note 1 to Article 16.1, note to Article 18.1 of the Code of Administrative Offenses), but in This latter case, the qualification of the fault is made on the basis of psychological, rather than corporate criteria.

Correlation of psychological and formal-legal (didactic) criteria of individual guilt is also due to the presence of material (objectified) and subjective factors. The establishment of psychological criteria is always associated with analytical public procedures, especially with public proof procedures, during which verbal information is to be accumulated, as well as documented information. Public procedures are provided by the intellectual capabilities of officials of the jurisdictional body, and their result is always objectified in the form of a corresponding array of information that is subject to analytical research as evidence in the case of an administrative violation.

The establishment by the body of legislators of formal legal criteria is connected with subjective, first of all - political factors - factional lobbying in the legislative body with subsequent embodiment of the political will of the representative body in the law passed by it. The subjectivism of such factors is determined by the volatility of the economic and political conjunctures that determine the corresponding methods of legislative technology. Political manipulation is the dominant factor that predetermines subsequent public procedures of legislative regulation. The prerequisites for the establishment of didactic criteria do not depend on the objective needs of regulatory legal regulation, on the contrary, they are always personified, subjective, since they are intended to provide for individual or corporate needs of subjects of private and public law.

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