What is the administrative responsibility of legal entities

The issue of criminal and administrative liability of legal entities remains debatable today. According to some researchers, the institution of the application of punishment to legal entities destroys the integrity of the subject of legislative regulation. Let us further consider in detail the features of administrative responsibility of legal entities.

Relevance of the problem

The debatability of the issue is also determined by the essence of the legal entity as a legal fiction. He has no reason and mental attitude to the actions taken. Accordingly, the administrative responsibility of individuals and legal entities involves a different understanding of the institution of guilt.

According to the current legislation, legal entities act as subjects of responsibility on a par with citizens. It should be said that in practice the issue of bringing to administrative responsibility of legal entities was resolved much earlier than in theory.

Institute specifics

If a legal entity is held administratively liable, all provisions enshrined in the Code of Administrative Offenses apply to it, as well as to citizens. For example, it cannot be punished twice for the same offense. The imposition of a sanction or the application of security measures in relation to a legal entity is allowed only on the grounds and according to the rules established by law.

For each specific case, the rules in force at the time and place of the offense apply. An exception are cases when the rules apply only to individuals. In particular, this refers to the provisions on insanity, commission of offenses by a group of persons, etc.

Administrative liability of legal entities: definition

The key regulatory act establishing the procedure for imposing sanctions on legal entities is the Code of Administrative Offenses. General rules for the application of punishments are enshrined in Art. 2.10 of the Code. According to paragraph 1 of this article, the administrative liability of legal entities occurs in cases provided for by the norms of Sec. II Administrative Code or regional laws.

Currently, more than 200 offenses are envisaged. So, the administrative legal liability of legal entities is established for attacks on:

• Rights, sanitary and epidemiological welfare, health of citizens.
• Public order, morality, private property.
• Ecological safety.
• Relations in the field of finance, taxation, agriculture, customs.
• The procedure for the implementation by the institutions of power of their functions.
• To the state border.
• Road safety.

Regional regulations

As established in the Code of Administrative Offenses of the Russian Federation, the administrative liability of legal entities for violations of the legislation of entities occurs if the corresponding offense is provided for in it. The regional authorities, guided by the Constitution (Article 72, Part 1), have the right to enforce sanctions exclusively in laws. Moreover, normative acts may not contradict the provisions of the Code of Administrative Offenses.

Administrative liability is applied to a legal entity according to certain rules. So, the rules that establish or aggravate the punishment for an offense or otherwise worsen the situation of the subject are not retroactive.

Laws abolishing or mitigating the administrative responsibility of legal entities and citizens or otherwise improving their situation are retroactive. In other words, such norms apply to entities that have committed an offense before the entry into force of legal provisions, if the decision to impose sanctions on him has not been executed.

Terms of liability

The Decree of the Constitutional Court No. 7-P dated April 27, 2008 states that the administrative liability of legal entities in the Russian Federation only occurs for actions that are recognized as offenses by the legislation in force on the day of their commission. From this it follows that for imputation to the subject of sanction it is necessary to identify the composition of the unlawful act.

Signs of offenses in the public law sphere, the content of a specific composition are determined on the basis of the constitutional principles of a democratic state, based on the requirement of justice and legality.

Elements of Violation

Legal entities are subject to administrative liability in the presence of the composition of an unlawful act. Mandatory elements of an offense are:

1. Subject. Acting as it, actually, a legal entity.
2. The object of the offense. They are those relations on which the subject encroaches.
3. The objective side is the content of the offense.
4. The subjective side is the subject's attitude to his actions.

The absence of any of these elements precludes the existence of an offense as a whole. Accordingly, the administrative liability of a legal entity is also unacceptable.

Object of encroachment

It recognizes public relations regulated and protected by administrative law. In accordance with Art. 1.2 Administrative Code, the objects of offenses are protection:

• Personalities.
• Freedom and rights of a citizen.
• The health of individuals.
• Public morality.
• The environment.
• Public safety.
• Private property.
• The economic interests of citizens and organizations, the state and society.

All these objects are considered generic and recognized as an integral and independent part of the general object. It acts as a relationship related to the prevention of offenses.

In addition, a species object is also distinguished - a specific group of social relations. It is, in particular, about the field of transport, finance, traffic, securities markets, taxes and fees, customs, etc.

Objective aspect

It is formed by the action / inaction of a legal entity. Administrative liability arises in the case when harm is caused to public relations. Damage is one of the key features of the objective side. In addition, it is characterized by the method, place, time of the offense. Additional signs of the objective side of the act may be malice, systematicity, repetition.

Subject Characterization

When describing this element of the offense, signs used by civil law are used. According to article 48 of the Civil Code, a commercial or non-profit organization created in the form provided for by the rules of law and having the corresponding status acts as a legal entity.

In 3 parts of Art. 2.1 Administrative Code established that as a subject of an administrative offense can act as a legal entity or individual. In this case, it is necessary to pay attention to an important nuance. The imposition of administrative sanctions on a legal entity does not exempt from administrative responsibility the official.

Legal entities have a certain structure. Each organization has an executive body. It can be collegial (board of directors, for example) or sole (general director). The executive body includes individuals (officials). According to the law, the legal liability is borne by the legal entity as a whole and the specific citizen who committed the offense. Accordingly, the body considering the case must prove the guilt of both the official and the legal entity.

Subjective aspect

It is expressed in the mental attitude of the person to his action / inaction. Can guilt be considered an integral element of the offense? In order to get an answer to this question, it is necessary to refer to the provisions of the law. The concept of guilt is revealed in different norms. In the classical sense, it presumes a person’s mental attitude to an unlawful act and the consequences that occur in connection with its commission. In this sense, guilt refers to the awareness of the actions of citizens (including officials) committed on behalf of a legal entity. Therefore, here we can talk about "collective guilt", determined by "dominant will." A similar definition is present in Article 106 of the Tax Code.

Meanwhile, in scientific publications it is often noted that the guilt of a legal entity cannot be determined arbitrarily when establishing the guilt of a particular individual. Accordingly, for the onset of administrative responsibility of a legal entity, it is necessary to prove the guilt of all employees acting on its behalf.

In theory, another approach to determining guiltyness is also fixed. It is defined as a set of negative components associated with the disorganization of the legal entity, the failure to take appropriate measures to fulfill the duties assigned to him, as well as to prevent offenses and eliminate the causes of their assumption.

The guilty party of the legal entity under the Code of Administrative Offenses

It must be said that before the adoption of the current Code, evidence of non-involvement in the offense was assigned directly to the legal entity - there was a so-called presumption of guilt. Some researchers supported this approach. So, L. Ivanov points out that for any form of administrative responsibility of a legal entity, the presumption of innocence in the form in which it has developed in criminal law will not apply. Moreover, in the Constitution this principle applies only to persons who have committed crimes, that is, to citizens.

According to the provisions of Articles 26.1-26.2 of the Code of Administrative Offenses, in the framework of administrative proceedings, including those committed by a legal entity, the fact of guilt must be established and proved, together with other circumstances. In Art. 2.1 of the Code, it is stipulated that the legal entity will be found guilty of an offense if it is revealed that it was able to comply with the rules and regulations, but did not take appropriate measures to do this.

The concept of guilt in NK

The definition is disclosed in article 110 of the Code. Paragraph 4 of the norm establishes that a legal entity’s guilt of a tax offense is determined depending on the guilt of its representatives or officials whose inaction / actions led to a violation of the law.

NK distinguishes between forms of intent - indirect and direct. In addition, the Code contains an indication of negligence. However, she is only mentioned in the form of negligence. In other words, the offender did not realize the negative nature of the consequences of his actions / inaction, although he should have been able to be aware of it.

Difficulties in judicial practice

Until recently, difficulties arose in applying forms of guilt to offenses committed by legal entities. Meanwhile, judicial practice (of the Constitutional Court, in particular) distinguishes negligence and intent in the composition of unlawful acts provided for by the norms of the Tax Code.

For example, in paragraph 4 of the ruling of Constitutional Court No. 257-O of 2001 on the complaint of a separate division of one commercial bank, the Court draws attention to the incorrectness of the wording of provisions of Article 135 of the Tax Code. This norm establishes the liability of banking institutions for unlawful failure to comply with a decision of the supervisory authority to recover arrears or penalties. This wording made it possible to bring credit organizations to administrative responsibility simultaneously under part 1 and part 2 of this article for the same action. The Constitutional Court in its definition explained that the first part of the norm can be applied both with intent and in case of negligence. Part 2, in turn, applies to offenses committed with direct intent.

The simultaneous application of both the first and second parts of article 135 is recognized by the Constitutional Court as contradicting the fundamental principles of the onset of administrative responsibility, since it is impossible to qualify one act as imprudence and intent at the same time.

Special cases

It must be said that the legislation provides for several situations where the administrative liability of a legal entity can occur even without its fault. First of all, we are talking about offenses committed by the reorganized person during the merger, separation, accession, transformation. In these cases, the guilty person ceases to exist. However, he appears successors (one or more). According to the law, they will not bear administrative responsibility for violations committed by the reorganized person, but are only responsible for their own actions / inaction.

The concept of "succession" is a civil category. This institution is not provided for in administrative law. It should be noted that the norms of the Code of Administrative Offenses do not contain reservations on the application of civil law terms in law enforcement in cases of administrative violations. According to many experts, such reservations are necessary. The fact is that in Article 2 of the Civil Code (in paragraph 3) it is indicated that property law relations based on administrative or other power subordination of one entity to another, including tax and other financial relations, do not apply civil law standards, unless otherwise specified in the Federal Law.

Article 11 of the Tax Code contains the following disclaimer: "The concepts, terms, institutions of family, civil and other legislation are used in the sense in which they are applied in the relevant branch of law, unless otherwise stipulated in the Tax Code."

Classification of Offenses

As practice shows, most of the violations are associated with entrepreneurial and other organizational and economic activities of legal entities. As a rule, illegal actions are allowed in the following areas:

• Property protection.
• Nature protection, nature management.
• Construction, energy, industry.
• Land reclamation, agriculture, veterinary medicine.
• Information and communication.
• Entrepreneurship.
• Taxes, fees, finances, securities market.
• Customs affairs.

The basis for the classification of offenses by type is the content of the legal entity’s obligations in a particular area of ​​state regulation, for which guilty non-fulfillment or improper execution is punishable. There are attacks on:

1. The rule of law.
2. Management Order.
3. Relations in certain areas of government.

The first two types of offenses are universal in nature, since they can be committed in any area of ​​state regulation.

Types of punishment

The legislation provides for the following types of sanctions for legal entities:

1. Warning. It is an official censure expressed in writing.
2. Fine. The amount of the penalty depends on the severity of the violation, however, it cannot be less than 100 r. and more than 1 million p.
3. Compensated seizure of an object or instrument of an offense.
4. Confiscation of property. It involves the free compulsory seizure of material assets in favor of the state or a subject of the Russian Federation.
   

Features of cash recovery

An administrative fine may be imposed in the form of a fixed amount or be a multiple of:

1. The cost of the subject of the offense at the time of completion or suppression of unlawful acts / omissions. In this case, the amount of the fine cannot exceed the price of the corresponding item or the amount equivalent to it, more than three times.
2. The revenue received from the sale of products, work, services for the calendar year, if the subject of the offense sold the goods, provided the service or performed work in the previous billing period. The amount of recovery in this case cannot be higher than 1/25 of the total revenue.
3. The amount of unpaid and payable at the time of completion or suppression of the offense of fees, taxes, customs duties, illegal currency transactions, etc.
4. Proceeds from the sale of products (provision of services, performance of work) received as a result of unlawful overpricing of the price regulated by the state for the entire time during which the violation was committed, but not more than 1 year. The fine should not be higher than twice the amount of excessively earned profit for the entire period of regulation.

Business offenses

They are considered the most common illegal actions of legal entities. According to statistics, the main violations in the field of entrepreneurship are:

1. Conducting activities without special permission or without state registration.
2. Illegal sale of goods (other values) prohibited or restricted in circulation.
3. Violation of legislation in the field of advertising.
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