Administrative and criminal liability are the most difficult legal consequences for violators. However, in essence, administrative responsibility is such that a situation often arises when an act of a citizen containing the features of a particular offense, however, does not pose a great public danger.
Grounds for Disclaimer
The absence of negative consequences for the offender in practice is associated with two situations: when it comes to the exclusion of such a thing as administrative legal liability in the presence of all signs of misconduct; or when the offense is deemed perfect, but the perpetrator himself is not subject to liability. The Code of Administrative Offenses sets forth the following grounds for exemption from administrative responsibility: insignificance, substitution with another punishment, insanity, and others.
The release is connected, in particular, with the fact that the state apparatus needs to economically use coercive means. The main task of the enforcement authority is to correctly take into account the content of the objective and subjective aspects of the offense, identifying mitigating and aggravating circumstances.
Insignificance
The Code of Administrative Offenses of the Russian Federation gives the right to the court, body, official who draws up the decision on imposing an administrative punishment, under certain signs, to recognize the committed act as insignificant. I must say that an indication of insignificance existed back in the days of the USSR, in the previous Code, but so far the legislator has not given an exact definition of this term, has not clarified what are the evaluation criteria, but only delegated this obligation to the law enforcement.
For officials, in most cases, the opinion of the Supreme Court is authoritative. According to the Resolution of the Plenum of the Armed Forces of March 24, 05, No. 5, an act of minor nature, the nature, amount of damage and the severity of the consequences of which are not a big threat to the normal functioning of public relations, can be considered a minor administrative offense. In this case, the personal motives and property status of the perpetrator are not taken into account. In this case, the court, acting as the final authority, has the right to amend the decision of another body, recognizing the decision as unlawful and canceling it.
Thus, the law does not have an exact concept of insignificance, which, on the one hand, allows an authorized person to be more democratic, and on the other hand, creates a field for abuse, entailing exemption from administrative responsibility in unacceptable circumstances.
Commutation of punishment
If there is an exemption from administrative responsibility on the grounds of insignificance, an oral comment applies to the offender, which relates to response measures. An oral comment informs the inadmissibility of such behavior in the future. It has no written expression and can be submitted at any stage of administrative proceedings. Replacement is also made in cases when it comes to the military (a soldier is brought to disciplinary responsibility), minors, usually this is the case with misconduct committed for the first time.
The innovation introduced in the Code of Administrative Offenses of the Russian Federation is the latest changes regarding the mitigation of punishments for small and medium-sized businesses for offenses identified during state inspections - instead of a fine, a warning is a tool of coercion.
Release from punishment of minors
The administrative legal liability of minors is a special case. It is worth noting that persons from 16 to 18 already act as subjects of administrative responsibility. The court may come to the conclusion that the punishment is replaced by an oral reprimand, based on data on the personal qualities of the offender. Such a decision is also made by the commission on juvenile affairs, and the list of applicable measures is also regulated by the Federal Law on the Prevention of Neglect and Juvenile Delinquency. For example, a commission may require a public apology, a warning, public censure, and a child placed under home supervision.
Statute of limitations
The period of administrative liability may also affect the imposition of punishment, which is partly taken from the criminal law. Art. 4.5 indicates such periods of prosecution as three months, a year from the date of the administrative offense - in case of violation of the legislation on territorial seas, the exclusive economic zone of the state, on protecting the interests of investors in the securities market, customs, currency, tax and other laws.
The reason for this “omission” lies in the fact that, unlike criminal law, administrative does not recognize the principle of the inevitability of punishment for a misconduct.
If the offense is of a long nature, then the time shall be calculated from the moment of detection of such. The Supreme Arbitration Court, when it was in existence, pointed out that when checking the statute of limitations, it must be remembered that the day the unlawful act was revealed is the day of the commission. In this case, one should proceed from the circumstances and signs of the objective side. It is worth considering that the statute of limitations, according to the current legislation, has only one reason for suspension - a person’s request to consider a case at his place of residence.
Some scholars nevertheless believe that it is impossible to consider the statute of limitations as a condition, the observance of which entails exemption from administrative responsibility, since such a mechanism is more associated with ensuring the effectiveness of the administrative-jurisdictional apparatus.
Special types of exemption bases
Special types of grounds for exemption include cases involving certain groups of entities (for example, military personnel or minors), and the composition of the Special Unit, in which the algorithm of exemption is directly prescribed.
Military personnel and citizens called up for military training may not be held administratively liable if a certain disciplinary act functions within the unit.
For example, Art. 15.11 contains provisions on liability for violation of accounting and reporting, where the second part allows for exemption from liability in case the violators compensate for the lack of taxes paid, and correct the corresponding defects and errors in the tax return. Art. 2.6.1 is intended to relieve the owner of the vehicle from liability in situations when the car was not controlled by it (by proxy, as a result of theft). Art. 14.32 provides for exemption for the person who first complied with all the conditions.
Differences between the concepts of “exemption from administrative responsibility” and “exclusion of administrative responsibility”
Administrative legislation is structured so that some jurists combine circumstances exempting from administrative responsibility with circumstances that exclude it, thus considering the extreme necessity and insanity on a common list. However, these are, of course, two different legal institutions, since the first case does not exclude the harmfulness of the act to society (as opposed to emergency), the actions of a person are recognized as legitimate and not containing intent.
Problems of functioning of the institute of liability exemption
Most legal issues are related to norms that are evaluative in nature. The absence of signs of insignificance makes it possible for the administrative body to independently evaluate the circumstances, which has negative consequences and gives rise to inconsistency in practice.
It also seems to be extremely wrong what the procedure for exemption from criminal liability of a person who did not drive transport at the time the offense was recorded, since it is most likely about the absence of a composition as such - an improper subject of the act.
Practice on exemption from liability
When considering the issue of insignificance, it is necessary to know whether there are offenses against which it is not possible to apply the norm. Indeed, the Supreme Court in Judgment No. 18 of 10.24.06 made it clear that it is impossible to use the rule of insignificance in cases where it is connected with drinking alcohol while driving a vehicle, since the machine is a source of increased danger. The court takes into account potential harm to public relations, regardless of the harm caused.
At the same time, there are frequent misunderstandings: for example, in one case, the court did not consider the non-use of cash registers as a violation that poses a threat to public order, referring to the fact that the seller who carried out the sale worked the first day and had a good characteristic. In another case, the court considered that there was a threat to public relations in the act, despite the fact that the amount by which the goods were sold was insignificant. Sometimes during a judicial investigation it turns out that the offense does more serious harm than that specified in the article of the Code of Administrative Offenses of the Russian Federation, in which case it becomes impossible to punish the offender administratively. Criminal liability is likely to provide an opportunity to qualify the offense as a crime.
All this allows us to conclude that law enforcers, one way or another, require a more accurate explanation of the criteria for exemption from administrative responsibility.