Once again about the doctrinal understanding of the terminology of "administrative-tort law"

Kurakin Aleksei Valentinovich Doctor of Law Professor at the Department of Administrative and Information Law of the Financial University Under the Government of the Russian Federation 125993, Russia, Moskva oblast', g. Moscow, ul. 125993, Moskva, Leningradskii, 49 kurakinaleksey@gmail.com Other publications by this author

The article was prepared with the information support of the Consultant Plus Company 

Instead of an introduction

The question regarding the terminology of administrative-tort law is very important from the point of view of the application of both legislation on administrative offenses and measures of administrative responsibility. The concept of the subject of administrative-tort law is related to an administrative offense, administrative responsibility, as well as administrative punishment. As noted by A.P. Shergin, "administrative tort law is a branch of Russian law that unites legal norms regulating public relations related to administrative offense and administrative responsibility" ^[1].

The designated author raised the question of the separation of administrative-tort law from the system of administrative law, while taking criminal law as a basis. As A.P. Shergin wrote in his article on the relevant issue, "... administrative-divisional relations in their content are nothing more than one of the types of relations of legal responsibility, they are closest to criminal legal relations" ^[2].

A.V. Kirin also formulated the concept of administrative-tort law. At the same time, the author considers it "... as a single subsectoral complex of substantive and procedural norms as part of the following specialized legal institutions: institute of administrative offenses (torts); institute of administrative responsibility (punishments); institute of subjects of administrative jurisdiction; institute of proceedings in cases of administrative offenses; institute of enforcement of decisions in cases of administrative offenses" ^[3].

It should be noted that the issue of administrative-tort relations is not new, it was first raised and disclosed by L.V. Koval. As the designated author wrote, "... tort relations are subject to administrative responsibility" ^[4].  Based on the essence of these relations, it should still be noted that administrative-tort relations take place not only with the application of administrative liability measures, but also with the application of measures to ensure the proceedings in cases of administrative offenses and the execution of relevant resolutions.       

The concept of administrative-tort law looks very attractive, but it also has opponents. As A.A. Grishkovets writes, "... the terms "administrative tort" and "administrative tort", which are fundamental in the so-called "administrative tort law" and are widely used by its supporters in their works, are unconditionally not accepted by many authoritative authors investigating the problems of administrative responsibility" ^[5].

A.A. Grishkovets defends the point of view that the term "tort" has a civil sense and is related to civil liability. This position is generally correct, it is in the science of civil law that this term is used, which means "offense" from Latin. However, it should be noted that some of the same terms are used in different sciences, in different semantic meanings.                    

And to some extent, at least in the doctrine, it is possible to use the term "administrative tort".                    

It should be noted that the part of administrative law that is associated with administrative responsibility, administrative punishment, as well as with an administrative offense is a protective, police aspect of this branch of law. This block of norms can work effectively only in the general system of norms of administrative law. In this regard, there is no need to separate administrative and tort law into an independent branch.

Terminology is very important for relations related to the application of administrative responsibility, in this regard, let's consider how such a category as: administrative offense; "administrative responsibility" and "administrative punishment" is doctrinally understood.  Proceeding from this, let us consider what is understood in the legal doctrine regarding the basic categories of "administrative-tort law".            

Issues of administrative offenses

The question of an administrative offense is not new, but changing political and legal realities make it necessary to pay attention to such a category as "administrative offense". As V.E. Sevryugin noted, "... the legislative definition of the concept of an administrative offense occupies one of the most important places in the system of law enforcement concepts, since understanding of all subsequent concepts, understanding of their content and meaning depends on its correct interpretation" ^[6].

  Note that today the Administrative Code of the Russian Federation in its content has, in fact, only one definition, and it concerns an "administrative offense". Such an approach is clearly insufficient, since law enforcement practice, in particular related to the implementation of administrative penalties, requires more precise definitions that would contribute to improving its quality, regulatory categories would also exclude arbitrary interpretation of articles of the Administrative Code when qualifying a variety of administrative offenses.               

  It should be noted that the normative definition of the concept of an administrative offense did not exist for a long time and in law enforcement practice had to rely on a doctrinal definition. For the first time, the general definition of an administrative offense was fixed in the Fundamentals of the Legislation of the USSR and the Union Republics on Administrative Offenses (Article 7), and then the Administrative Code of the RSFSR (1984). The Administrative Code of that time determined that "an administrative offense (misdemeanor) is recognized as encroaching on state or public order, property, rights and freedoms of citizens, on the established management procedure, an illegal, guilty (intentional or careless) action or inaction for which the legislation provides for administrative responsibility" (Article 10).    

As you can see in this definition, the concept of "misconduct" is used and it is identical to the category of "administrative offense" in the future, such a construction was abandoned. We also note that in the definition of an "administrative offense" of that time, priority objects of legal protection of state and public order, state property are fixed, and the rights and freedoms of a citizen are far from the first place. Such a construction fully corresponded to the development of legal doctrine and the current legislation of that time. Moreover, only citizens were the subject of an administrative offense. This trend was determined earlier. One of the first documents on the issue of administrative responsibility after the events of October 1917 was the decree of the Central Executive Committee of the RSFSR of June 23, 1921 "On the procedure for imposing administrative penalties" this document stated that "... administrative penalties are imposed on citizens for violating mandatory local government regulations" (paragraph 1). In the future, measures of administrative responsibility began to be applied to economic entities. This can be said, in particular, by the resolution of the CEC of the USSR No. 48, the Council of People's Commissars of the USSR No. 1402 of September 17, 1932 "Regulations on the collection of taxes and non-tax payments".

Some time later , in the decree of the Presidium of the Supreme Soviet of the USSR dated June 21 , 1961 , "On further restriction of the application of fines imposed administratively" it was determined "to cancel the imposition of fines administratively on institutions, enterprises and organizations" (item 6). Thus, only citizens have become the subject of an administrative offense since that time, and such an order existed until the early nineties of the last century. The changed political and legal realities in the nineties, the development of market relations caused an objective need to consolidate legal entities of private law as subjects of administrative offenses, in connection with this, a rethinking of the doctrine related to the assessment of the subjective side of an administrative offense was required. Yu.Yu. Kolesnichenko on this occasion noted that "... consideration of the guilt of a legal entity from objective the position, with an emphasis on illegality, allows us to conclude that the fault is associated with the exit of a legal entity beyond the legal possibilities provided to it. And therefore, the guilt of a legal entity can be determined only from an objective standpoint, that is, from the position of a state body imposing administrative punishment" ^[7]. There is also a subjective approach to assessing the guilt of a legal entity from the position of determining the guilt of its officials. This approach is more understandable from the point of view of bringing a legal entity to administrative responsibility and imposing administrative penalties on it.                        

Currently, the concept of an administrative offense is enshrined in the Administrative Code of the Russian Federation, which states that "an administrative offense is an illegal, culpable action (inaction) of an individual or legal entity, for which the Administrative Code of the Russian Federation or the law of the subject of the Russian Federation on administrative offenses establishes administrative responsibility" (Article 2.1).  As you can see, one of the signs of an administrative offense is such a sign as "illegality". Illegality means a violation of a legal regulation, one might say a legal prohibition, which is established to ensure law and order. An offense cannot take place without such a sign as illegality. As M.S. Studenikina noted, "... the state, being interested in strengthening the relevant procedures, prohibits with the help of legal norms those acts that are dangerous and harmful to it. Illegality is nothing but a violation of one of these norms" ^[8].

Regarding such a sign as the illegality of an administrative offense, other points of view have also been expressed. Thus, A.P. Shergin wrote that "... the legal expression of the public danger of an administrative offense is its illegality" ^[9]. Note that in the doctrine, from the very beginning of the appearance of such a category as "administrative offense", there is a discussion as to whether this act has such a sign as "public danger". Opinions on this issue are divided. Thus, O.F. Shishov once wrote that "... administrative offenses, being by their nature socially dangerous acts, differ from crimes by a lesser degree of public danger" ^[10].

A.V. Seregin wrote that "... an administrative offense taken separately causes less harm to public relations, and the person who committed it does not pose the same danger to society as the criminal" ^[11]. This approach to the characterization of an "administrative offense" looks somewhat archaic, but it can be seen that this act is endowed with such a quality as harmfulness. An administrative offense both taken separately and a lot of these acts cause harm to society, the state, as well as to a single person. The degree of such harm can be very different, there may be significant, significant, insignificant (insignificant) harm. Based on the degree of harm caused, it is possible to differentiate administrative offenses. This is also important for choosing the measure of responsibility for the offense committed. The current provisions of the Administrative Code provide grounds for classifying administrative offenses, but it is necessary to give a list of types of administrative offenses in the general part. In the current situation, we can talk about a minor administrative offense, such an offense does not have the quality of a public danger, it also does not cause harm, rather, it contains a potential opportunity to cause minor harm, in this regard, a person who has committed a minor offense can be released from administrative responsibility (Article 2.9 of the Administrative Code). On this issue, A.B. Panov noted that "... a minor administrative offense formally contains signs of the composition of the offense, but taking into account its nature and the role of the offender, as well as its consequences, this offense has no significance in violating protected public relations" ^[12].

Administrative offenses can be classified according to a variety of criteria: by the object of encroachment; by the subject of the act; by the consequences that have occurred; by time duration; by frequency of commission, etc. But the key criterion, as it seems to us, is the differentiation of administrative offenses according to their degree of public danger or harmfulness. At the moment, the Administrative Code provides grounds for the allocation of a gross administrative offense, so responsibility is provided for "carrying out activities for organizing and conducting gambling in bookmakers and sweepstakes with a gross violation of the conditions provided for by the license" (Article 14.1.1).  The Administrative Code sometimes uses the term "significant violation". Thus, responsibility has been established for violating the requirements for budgetary (accounting) accounting, which entailed the submission of budgetary or accounting (financial) statements containing a significant distortion of the indicators of budgetary or accounting (financial) statements (Article 15.15.6). All these examples tell us that in the Administrative Code there is a differentiation of administrative offenses depending on their danger or materiality. On this issue, A.A. Refugees, correctly, noted that "... depending on the degree of public danger, we can talk about a three-tier system of administrative offenses.  Administrative offenses of a high degree of public danger; administrative offenses of minor public danger; the least socially dangerous administrative offenses, which at their first commission are not administrative offenses, but acquire this status with repeated commission" ^[13].

Next, we will give a few more positions that take place with respect to the designated problem.  E.A. Vasiliev, having analyzed various points of view on the issue of signs of an administrative offense, concluded that "... such a sign as a public danger is not inherent in administrative offenses" ^[14]. I must say that this position is not indisputable. This is evidenced by both the examples given from the current Administrative Code, measures to ensure the proceedings in cases of administrative offenses that are applied at the stage of initiation of an administrative case, and the administrative penalties themselves. Coercive measures are serious enough to be applied for administrative offenses that do not pose a public danger.                     

A.B. Agapov has clearly outlined his position. Thus, this author writes that "... public danger is the main attribute of an administrative offense that separates a misdemeanor from a crime" ^[15].

V.R. Kisin's judgment seems to be a compromise. The designated author noted that ... if administrative offenses did not entail harmful consequences, would not pose a danger to society, the state would not need to establish legal responsibility for their commission, as well as create an apparatus to combat them. It should be recognized that the public danger of individual offenses is not as obvious as crimes, but the harmless offenses taken in their mass disorganize public relations, in the preservation of which society and the state are interested" ^[16].        

The dispute about whether an administrative offense has such a feature (quality) as a "public" danger continues, the basis for this is a regulatory prescription of this category, at the same time, attention is drawn to the fact that every fifth administrative penalty in the form of administrative arrest is an arrest for up to 30 days. But how can it be that such a strict administrative punishment associated with the restriction of personal freedom and a number of other rights is applied to a person for an offense that does not pose a public danger. The severity of other administrative penalties also tells us that an administrative offense, in general, has the quality of "public danger".

Of course, there are also "harmless" offenses (acts) in a huge number of administrative offenses, to which the state reacts only on the basis of formal circumstances. V.E. Sevryugin, correctly, noted that "... regardless of the presence or absence in the official text of the concept of an administrative offense of a direct indication of public danger, harmfulness as a material sign in reality, there are no such offenses that would not cause harm to public relations protected by law" ^[17].

Another important sign of an administrative offense is guilt. Guilt is both a sign of an administrative offense and an obligatory element of its composition. As V.Ya. Petelin wrote at the time, "... guilt characterizes the mental conditioning (in the form of intent or lack of caution) of illegal behavior and the harmful consequences that have occurred" ^[18].      

 Regarding such a sign of an administrative offense as "guilt", V.R. Kisin wrote quite meaningfully. Thus, the designated author indicated that "... guilt expresses the mental attitude of a person to the offense committed and its consequences. To recognize an act (action or omission) as an offense, it must be established that it was a manifestation of the will of reason, i.e. the product of the mental activity of a sane person. It cannot be assessed as an administrative offense socially dangerous, illegal and administratively punishable acts committed against the will of a person, i.e. by a person who is unable to direct his actions, to give them an account" ^[19].                               

A state without guilt cannot take place when it is caused by a mental illness of a person, this disease suppresses the will, and also distorts the perception of objective reality by the relevant person. At the same time, the deliberate introduction of a person into a state of insanity due to the use of alcohol or narcotic drugs does not exclude guilt, but can only increase responsibility for the committed act. Thus, guilt is a mandatory feature and an element of the composition of an administrative offense.   

An administrative offense is an illegal act that violates the prescription of the norms of law, thereby punishment (responsibility) is provided for the violation. The absence of punishment for an illegal act does not give grounds to consider it as an offense. Thus, it is the punishment that gives legal meaning to all other signs of an administrative offense. Administrative punishments are quite diverse, this is due to both a differentiated approach to sentencing and a variety of administrative offenses. Administrative punishment and administrative offense are logically interrelated categories. Administrative punishment is applied only for an administrative offense committed. Thus, without punishability, such a sign of an administrative offense as illegality cannot have practical and social meaning. It should also be noted that the degree of public danger of an administrative offense may depend on objective and subjective circumstances. Thus, an administrative offense committed by an official may have a higher social danger, and the method and time of committing an administrative offense may increase its social "harmfulness".           

Further, it should be noted that the issues of delineation of administrative offenses from other offenses (misdemeanors) attract attention. Some administrative offenses are very similar in their objective features to crimes, disciplinary offenses. This is due in particular to the same object of unlawful encroachment. It draws attention to the fact that the problem of distinguishing administrative offenses and crimes was very relevant some time ago, and this issue was investigated by representatives of science, both administrative and criminal law. Thus, the following studies were devoted to this issue: A.M. Medvedeva ^[20]; V.V. Lukyanova^[21] and others.

The general conclusion of these studies is that, one way or another, administrative offenses do not pose a great public danger, thereby differs from crimes by the way they are committed, as well as by the material consequences that have occurred. Thus, the Administrative Code provides for liability for "... intentional destruction or damage to someone else's property, if these actions did not cause significant damage" (Article 7.17). As stipulated in the Criminal Code, "significant damage is determined taking into account the property status of the victim, but cannot be less than five thousand rubles" (Article 158). If we talk about physical harm, then, as defined in the Administrative Code, "... beatings or other violent acts that caused physical pain to the victim, if these actions do not contain a criminally punishable act of Article 115 of the Criminal Code" (Article 6.1.1). As you can see, the line between some administrative offenses and crimes is very thin. There are administrative offenses in the Administrative Code, for the repeated commission of which criminal liability is provided. In particular, the Administrative Code provides for liability for the sale of alcoholic beverages to a minor (Article 14.16), the Criminal Code, in turn, provides for criminal liability for the sale of alcoholic beverages to minors if this act is committed repeatedly (Article 151.1). That is, the same illegal act, but committed repeatedly within a year is no longer an administrative offense, but a crime. An administrative offense may be associated with disciplinary offenses, but the tendency to replace disciplinary responsibility with administrative punishment is incorrect.

Next, let's say a few words about the composition of the administrative offense. The composition of an administrative offense is its construction, which is a set of interrelated elements, the absence of one of the elements does not allow us to say that there is an administrative offense. The content of the composition has elements of both objective and subjective nature. As already mentioned, an administrative offense causes harm to public relations, which are protected by the norms of law, these relations are the object of the relevant act. The object can be general, special, individual, basic, additional and optional. The "core" of the composition of an administrative offense is its objective side, it is an external manifestation of the offense, sometimes there is a detailed description in the text of the law, what the illegal act should consist of, which is prohibited and for which responsibility is provided. For example, petty theft can only be committed by theft, fraud, embezzlement and embezzlement.  The Administrative Code determines that the value of the stolen property should not exceed one thousand rubles (Article 7.27). It should be taken into account that in case of petty theft there should be no signs of a crime, only in this case this act will form part of an administrative offense.

 The objective side of an administrative offense has both mandatory and optional signs, the latter signs include: the time, place, method of committing the act, the consequences that have occurred, and accordingly there should be a causal relationship between the act and the consequences that have occurred as a result of its commission. Thus, the composition of an administrative offense can be material and formal. The subject of an administrative offense may be individuals, officials and legal entities that meet the requirements of the subject of this act. Sometimes a special subject of an administrative offense is singled out in the doctrine. As M.N. Biryukov noted, "... a special subject of an administrative offense participates in executive and administrative relations, as a person who is endowed with authority" ^[22]. The concept of "special subject of an administrative offense" is interpreted quite broadly, these subjects include not only officials, but also persons with other legally significant signs. Thus, S.V. Matveev wrote that "... the signs of special subjects are diverse and characterize their various sides: official duties; type of activity, past illegal behavior, as well as physical condition" ^[23]. 

The subjective side of the administrative offense concerns the "internal" component of this act. As V.R. Kisin noted, "... the subjective side of the offense characterizes the internal mental attitude of a person to the committed offense and its consequences" ^[24]. In the structure of the elements of the subjective side, the key element is guilt. It has already been noted that guilt is a sign of an administrative offense, but also an element of its subjective side. As A.I. Akhmedov wrote, "... guilt as an element of the composition of an administrative offense is the appearance of the will and mind of an acting (inactive) sane person, his mental attitude to the committed act" ^[25].

In this regard, it is no coincidence that only a sane person can be the subject of an administrative offense. As defined in the Administrative Code, "... a person who was in a state of insanity at the time of committing illegal actions (inaction) is not subject to administrative responsibility. That is, this person could not realize the actual nature and illegality of his actions (inaction) or direct them due to a chronic mental disorder, temporary mental disorder, dementia or other painful mental state" (Article 2.8 of the Administrative Code).

The subjective side of an administrative offense has not only a mandatory element, which is "guilt", but also optional elements, which include: the purpose and motive of committing the relevant act. The goal is the result that the relevant offender wants to achieve, and the motive is an incentive to commit certain illegal actions. The motive for committing administrative offenses can be very different. Administrative offenses are committed out of selfish motives, hooligan motives, etc. In conclusion, it should be noted that an administrative offense is an act of varying degrees of public danger that violates the normative regulations, committed by a subject who understands the meaning and significance of his behavior, and for which the law provides responsibility. Proceeding from the above, it can be concluded that an administrative offense has such essential features as illegality, culpability, public danger and punishability.   

 Issues of administrative penalties and administrative responsibility. 

 The question of administrative penalties is, in fact, the question of administrative coercion, or rather, the question of administrative responsibility. However, the problem of administrative responsibility and administrative penalties is quite broad, integrating various components of coercion, as well as affecting social and economic problems. In this regard, there is every reason to consider the issue of administrative penalties, which, in fact, express the essence of administrative responsibility, or rather speak about its coercive potential. As defined in the Administrative Code of the Russian Federation "... administrative punishment is a measure of responsibility established by the state for committing an administrative offense" (Article 3.1). Attention was drawn to such an understanding of administrative punishment back in the mid-eighties of the last century. Thus, B.M. Lazarev wrote that administrative punishments are measures of administrative responsibility ^[26]. This position had a defining character in the doctrine of administrative law, this trend can be traced in very substantial works. Thus, I.A. Galagan once noted that "... administrative responsibility should be understood as the application of administrative penalties in accordance with the established procedure" ^[27]. P.I. Kononov calls administrative penalties, in principle, measures of administrative responsibility, in connection with which he writes that measures of administrative responsibility are administrative and legal provided for by the norms of law sanctions ^[28].

The position of the designated authors is clear, indeed, the procedural form of administrative responsibility makes it possible to apply the appropriate administrative punishment, however, it is necessary to take into account the fact that bringing to administrative responsibility does not yet mean that an administrative punishment will be imposed on the person brought to responsibility. Now the Administrative Code, as in other things, previously provides for grounds for exemption from administrative liability (Article 24.5). The grounds for exemption from administrative responsibility may be material and procedural. Thus, A.V. Murashev wrote that "... the material grounds for exemption from administrative responsibility are the circumstances that characterize the identity of the perpetrator and his offense, and these circumstances make it possible to conclude that it is possible to achieve the educational and preventive purpose of administrative punishment without its imposition and, accordingly, execution. The procedural basis for exemption from administrative responsibility is an act of an authority or official on the application to the offender of the norm on exemption from administrative responsibility" ^[29].

Among the grounds for exemption from administrative liability are: "absence of an event of an administrative offense; absence of the composition of an administrative offense; death of an individual brought to administrative responsibility; expiration of the statute of limitations for bringing to administrative responsibility; issuance of an amnesty act if such an act eliminates the application of administrative punishment; actions of a person in a state of extreme necessity; recognition as invalid or its provisions, which establishes administrative responsibility for what has been done," etc. Thus, it is obvious that a person brought to administrative responsibility will not always be subjected to administrative punishment. In the very fact of bringing to administrative responsibility, there is an element of coercion, in particular, related to the application of measures to ensure the proceedings in cases of administrative offenses, but the punishment may not be applied in the future, since the guilt of the person brought to administrative responsibility will not be proven. Or there will be other circumstances of non-application of administrative punishment, which were listed earlier (Article 24.5 of the Administrative Code).

It should be noted that the Administrative Code, unlike criminal and criminal procedure legislation, does not say anything about such an issue as exemption from liability for rehabilitating and non-rehabilitating circumstances. In this regard, it would be correct to differentiate the grounds for exemption from administrative liability by the designated types.

Administrative punishment by its legal nature and functionality is administrative coercion, and the very fact of bringing to administrative responsibility is also an integral part of the corresponding coercion, but bringing to responsibility cannot be attributed to punishment. Both the first and the second coercion restricts the rights of the person against whom they are applied and these restrictions have a different nature. Thus, punishment is a serious measure of administrative coercion.                                             

  Once again, we emphasize that such categories as "administrative punishment" and "administrative responsibility" are logically related to each other, but they are not identical. Although O.E. Leist once wrote that "... responsibility is often defined as the application and implementation of sanctions" ^[30]. Despite this thesis, the author still does not fully agree with it in the future.   

Yu.N. Starilov wrote that "... administrative responsibility means the use of not all, but only part of the measures of administrative coercion, namely administrative penalties and administrative-restorative measures, which entail burdensome moral, property and personal consequences for the perpetrators" ^[31].

Administrative-restorative measures in administrative law are a rather controversial phenomenon. Probably, these measures are related to the restoration of social justice in view of the fact that the perpetrator of an administrative offense bears due responsibility. D.N. Bakhrakh's thesis that "... restorative measures in administrative law are used to compensate for the damage caused, restore the previous state of things" ^[32] no longer meets the requirements of administrative legislation. Restorative measures of a property nature are effective in the implementation of civil liability.                  

A number of points of view have been expressed on the question of the ratio of "administrative punishment" and "administrative responsibility". Thus, K.S. Belsky wrote that "... administrative responsibility is a procedural category, it is a form of state response to an offense, and the corresponding form further makes it possible to apply administrative punishment to the guilty person" ^[33].        

S.M. Skvortsov spoke most clearly on the ratio of "administrative punishment" and "administrative responsibility". This author once noted that "... administrative responsibility and administrative punishment are interrelated, but these categories are not identical. Their similarity lies in the fact that the only reason for their occurrence is illegal behavior. They are directly related to the implementation of coercive influence, and, consequently, with adverse consequences for the offender, in addition, exemption from liability simultaneously releases from punishment, non-application of punishment is not associated with exemption from liability" ^[34].   

The author also talks about the differences between "administrative responsibility" and "administrative punishment". In particular, "they pursue different goals; in addition, responsibility (an official negative assessment of a person's act) comes, of course, then the penalty is relative, due to certain factors (in particular, the identity of the perpetrator, the nature of the offense committed)."

Carrying out the ratio of the designated categories, it should be noted that administrative punishment is a consequence of bringing to administrative responsibility and it is not possible to impose punishment without such involvement. Bringing to administrative responsibility is a whole complex of procedural actions, in the content of which there is a coercive aspect. This aspect is necessary for the suppression of an administrative offense, the collection of evidence in the relevant case, etc. Administrative punishment is an element of administrative responsibility, which ultimately expresses its restrictive potential. It should be noted that the goals of administrative responsibility and administrative punishment can be both general and private (special) in nature. Thus, the objectives of the legislation on administrative offenses are the protection of the individual, the protection of human and civil rights and freedoms (Article 1.2 of the Administrative Code of the Russian Federation). This task (goal) takes place both in administrative responsibility and in administrative punishment. At the same time, a special purpose of administrative punishment is also normatively defined.  As stipulated in the Administrative Code, the purpose of administrative punishment is "to prevent the commission of new offenses, both by the offender himself and by other persons" (Article 3.1). The Administrative Code does not establish a special purpose of administrative responsibility, but its analysis makes it possible to conclude that the purpose of this type of legal responsibility is to establish a procedural form for the implementation of administrative punishment, as well as taking into account both private and public interests. As N.G. Salishcheva noted, "... when analyzing the institution of administrative responsibility, it is necessary to use the concept of combining public interests as a combination of the interests of the state and civil society and individual interests of the individual and private interests of hotel organizations" ^[35]. 

There is a position in which the interweaving of such categories as "responsibility" and "punishment" is seen. Thus, V.D. Ardashkin wrote that "... the task of responsibility is to condemn the guilty subject and cause him restrictions, suffering in proportion to the harmfulness of a particular offense. Through this punitive effect, other tasks of legal responsibility are realized, namely, correction and re-education of the violator, prevention of offenses and their eradication" ^[36].               

It should be noted that punishment in general and administrative punishment in particular should not bring physical suffering to the person to whom it is applied. It's over, the person brought to responsibility is experiencing moral suffering, worries about what happened, somehow reproaches himself, regrets his behavior. In this sense, we can talk about suffering, but it is quite subjective. In general, it should be taken into account that "administrative punishment cannot be aimed at humiliating human dignity, or causing physical suffering to a person" (Article 3.2). 

   Speaking about the essence of administrative punishment, it should be noted that the implementation of administrative punishment takes into account private interests.  For example: "when assigning administrative punishment to an individual, the nature of the administrative offense committed by him, the identity of the perpetrator, his property status are taken into account" (Article 4.1); at the request of the person brought to administrative responsibility, his case can be considered at his place of residence (Article 4.5).  In particular, it is necessary for a person to better protect their rights in the proceedings on an administrative offense. As follows from the Administrative Code, "the execution of an administrative arrest order may be suspended for up to seven days or terminated by a judge on the basis of a written application of a person subjected to administrative arrest. This is possible in case of exceptional personal circumstances (serious illness (state of health), death of a close relative or a close person, or an emergency situation that caused significant material damage to the person subjected to administrative arrest or his family) (Article 32.8). 

   The Administrative Code also provides for the postponement and installment of the execution of the decision on the imposition of administrative punishment (Article 31.5). All these and a number of other provisions indicate that in the implementation of administrative responsibility and possibly further punishments, the private interests of the person who is brought to this responsibility are taken into account.    

Next, we will say a few words about the essence of administrative punishments, in which the main potential of administrative coercion is concentrated. The essence of administrative punishments has been studied meaningfully, let us pay attention to a number of points of view. But before that, we note that the prescriptions regarding punishments are fixed in the sanctions of the legal norm, in this regard, the problem of the implementation of punishments is investigated through the analysis of legal sanctions. The works of O.E. Leist ^[37], I.I. Veremeenko ^[38], L.L.Popov ^[39] are devoted to the issues of disclosure of the essence of sanctions. Some issues of administrative and legal sanctions are touched upon in the study of O.S. Rogacheva ^[40]. The sanction shows the essence of administrative punishment and, accordingly, the essence of administrative responsibility.    

Without diving into a deep analysis of such a category as "sanction", we will give several definitions. Thus, I.I. Veremeenko wrote that "administrative and legal sanctions protect law and order with the help of both punishment and restoration and enforcement of a legal obligation that ensures real execution. Accordingly, these sanctions can be: punitive, restorative and suppressive in nature" (p.35). It should be noted that the author, first of all, focuses on the punitive nature of the sanction and this is true, since the sanction is established for this purpose. However, it should be emphasized that administrative punishment (sanction) also performs the function of correcting the violator, as well as the function of preventing offenses, the function of protecting society, the state and citizens from administrative offenses.                                               

As A.P. Korenev noted, "... the sanction of a legal norm is the establishment of the consequences of a violation of this norm. It contains an indication of the administrative measures applied to the violator of the rules formulated in the norm" ^[41].

B.T. Bazylev wrote that "... legal sanctions belong to the category of law enforcement means. These means themselves are quite diverse, since the violations for which they are used are diverse" ^[42].

M.S. Studenikina also reveals the essence of administrative responsibility through its sanctions. Thus, the designated author once wrote that "... administrative responsibility is a form of state response to an offense, expressed in the application of punitive administrative sanctions to the violator and consisting in the obligation of the guilty person to suffer adverse consequences for his behavior provided for by the sanction of the legal norm" ^[43].    

In general, we can see similar approaches to the issue of determining the functionality of such a definition as "legal sanction". The sanction contains the punishment for the offense committed and the punishment cannot exist outside of the sanction. The question of sanctions is, in fact, a question of punishments and responsibility, in this regard, we will consider how such a category as "administrative punishment" is understood in the doctrine, but before that we note that until 2002 the term "administrative penalty" was used, as it seems to us, these categories are identical in relation to today's realities. Although there are different opinions on this issue. Thus, A.P. Korenev wrote that "... administrative penalties are understood as punishment applied in accordance with the established procedure by an authorized entity to the guilty person. And this punishment may consist in moral or material impact on the offender, or in temporary deprivation of his special right" ^[44].             

The problem of administrative penalties (penalties) was investigated both in the context of disclosing the essence of administrative responsibility and coercion, in general, and independently. In certain periods of the development of the doctrine, all administrative coercion was reduced to administrative penalties.  So, S.S. Studenikin, speaking about administrative coercion in its structure, singled out: administrative penalties and social protection measures. Measures of social protection included such measures as: compulsory treatment; requisition; compulsory examination; detention of a person and detention of property. As already mentioned, basically all administrative coercion was reduced to administrative penalties ^[45]. At one time, in the textbook "Soviet Administrative Law" ^[46], a team of authors indicated that "administrative penalties are applied if the actions of the violator are not of a criminal nature." Thus, the authors differentiated responsibility and the grounds for its application.

Speaking about such a category as "administrative punishment", it should be noted that, on the one hand, its essence is influenced by the institution of administrative coercion as a whole, on the other hand, it is administrative punishments that influence the development of administrative coercion. This is due to the fact that almost all measures of administrative coercion are repaired by the implementation of the institute of administrative responsibility. As P.I. Kononov correctly noted, "... it is the measures of administrative responsibility that are applied to the person guilty of committing an administrative offense, and they express the final legal assessment of the illegal behavior of a person by the state" ^[47].

It should be emphasized that other measures of administrative influence, in particular measures to ensure the proceedings in cases of administrative offenses are applied to a person whose guilt in committing an administrative offense has not yet been proven, these measures are used to suppress the offense or collect evidence in the relevant case. It should be emphasized that administrative and procedural measures are also applied, if there are grounds, to a person "suspected" of committing an administrative offense.               

 Based on this premise, let's consider how the term is understood and what are the functions of "administrative punishment" under Russian law. Thus, A.P. Shergin once noted that "... an administrative penalty is a cartel sanction, which is a reaction of the state to a violation of the established law and order" ^[48].          

D.N. Bakhrah wrote that "... administrative penalties are punitive "punitive" sanctions, as a rule, they consist in the deprivation or restriction of rights, benefits. For a committed offense, the offender is deprived of a subjective right, or special "punitive" duties are imposed on him" ^[49].

It should be noted that according to the Administrative Code of the Russian Federation, in connection with the application of administrative punishment, not only "punitive" duties may be imposed on the relevant person, but also duties of a different nature, in particular organizational.      

A.B. Agapov states that "... administrative punishment is a legally formalized method of applying administrative responsibility and consists in establishing legal restrictions due to the guilty commission of a misdemeanor. By means of administrative punishment, encumbrances of the property and personal non-property rights of the violator are established in proportion to the public danger of the act" ^[50].

In general, it is quite a meaningful approach, but it should be noted that administrative punishment is a category of "secondary", subordinate to administrative responsibility, as already indicated, the question of administrative responsibility is initially raised, and then we are talking about the application of administrative punishment.            

A.I. Akhmedov writes that "... administrative penalty is a measure of administrative coercion, the use of which implements responsibility, consisting in mental or physical impact on the person who committed an administrative offense, in order to educate the offender in the spirit of compliance with the laws, respect for the rules of the hostel, as well as prevention of new offenses" ^[51].

This definition indicates the function (purpose) of the application of an administrative penalty (punishment). It should be recognized that the purpose or function of administrative punishment is not only the prevention of offenses, but also to some extent the correction and education of the offender. As R.A. Bruner correctly noted, "... administrative punishment, expressing a negative assessment by the state of the offense committed, is a coercive measure that simultaneously contains an educational goal" ^[52].      

There are some judgments about the purposes of administrative punishment in the doctrine. Thus, A.K. Mustafin wrote about such purposes of administrative punishment as education, as well as the prevention of committing administrative offenses ^[53].         

I.V. Maksimov considers administrative punishment as an exceptional type of administrative coercion characterized by a high degree of punitive impact on the offender, and it has the final stage of administrative prosecution ^[54]. As it seems to us, administrative punishment expresses the essence of responsibility and coercion.  

Taking into account the rather extensive practice of bringing to administrative responsibility, as well as the application of administrative punishment, it is not necessary to talk about the exclusivity of this measure of legal influence. It should also be noted that the administrative prosecution does not end with the application of administrative punishment, the very fact of issuing a decision on administrative punishment does not yet say that this punishment begins to take effect and the corresponding offender felt it, and fell under the restrictions of the imposed punishment. Coercion is also necessary in the execution of the applied administrative punishment, since not all decisions on the application of a measure of administrative responsibility are executed by the obligated person voluntarily. Only executed administrative punishment can achieve both legal and social goals. In this regard, M.Ya. Savvin correctly noted at the time that "... the prevention of administrative offenses is ensured by the threat of administrative penalties, as well as their actual execution" ^[55].                 

Administrative punishment is a measure of administrative coercion, which is precisely defined by law (Article 3.2 of the Administrative Code of the Russian Federation). In this measure of coercion, the main potential of administrative coercion is concentrated, which is implemented in a procedural form. The application of administrative penalties is preceded by a compulsory process involving bringing a person to administrative responsibility, in addition, in some cases, measures are applied to ensure the production of cases of administrative offenses.  It has already been said that administrative punishment restricts various rights of the person to whom it is applied, this is the essence of this punishment in general and administrative punishment in particular. Proceeding from the above, it should be concluded that administrative punishment is a measure of administrative coercion, which is implemented through a procedural form of administrative responsibility against a person whose guilt in committing an administrative offense has been proven in order to legitimately restrict his rights, protect public and private interests, prevent offenses, as well as correct the behavior of the relevant offender.  In conclusion, we note that an administrative offense is the basis for the application of administrative penalties, which express the essence of administrative responsibility. Based on this, it is very important to understand and evaluate an administrative offense from the standpoint of its degree of public danger.