Comparative legal analysis of the institution of administrative punishment in the current Code of Administrative Offences and in the Draft of the new Code of Administrative Offences

Chernyshenko Il'ya Gennad'evich ORCID: 0000-0003-4066-8446 Student, Civil and Business Law, Financial University under the Government of the Russian Federation 125993, Russia, Moscow, Moscow, Leningradsky Prospekt str., 49 cheig@inbox.ru Other publications by this author

Kiselev Aleksandr Sergeevich ORCID: 0000-0002-5044-4721 PhD in Law PhD in Law, Senior Lecturer, Department of International and Public Law, Financial University under the Government of the Russian Federation 125993, Russia, Moscow, Leningradsky Prospekt str., 49 pain068@yandex.ru

To date, public discussions have already taken place regarding the text of the draft new Code of Administrative Offences (hereinafter referred to as the Administrative Code), a conclusion has been prepared on the assessment of regulatory impact, the relevant Concept has been submitted by the Government of Russia, the development of the draft has been completed, however, the new Administrative Code has not yet been finalized to the final version and has not been submitted to the State Duma of the Russian Federation for consideration. According to the author of this article, there is a serious need for a radical revision of administrative legislation contrary to the repeatedly changing approaches to the presentation of administrative and legal norms in the draft Administrative Code and the Procedural Code of Administrative Offenses from 2020 and the necessary long-term improvements of the text of the drafts by the Ministry of Justice of Russia.

It should be noted what factors determine the need to revise the current administrative legislation:

1) numerous changes that have been made to the current administrative legislation (about 5 thousand changes made), their presence in the system of administrative legislation violates the stability of legal regulation due to their unsystematic presentation, lack of unity; 2) the desire to free the Supreme Court of the Russian Federation, the competent executive authorities from unnecessary explanatory work in relation to constantly changing administrative-legal norms; 3) transformation of the existing structures of administrative offenses, the desire to devote most of the new Administrative Code to the structures of administrative offenses, highlighting new structures; 4) changing the approach to the appointment of administrative penalties; 5) the allocation of proceedings on administrative offenses in a separate procedural code in order to minimize the cumbersomeness of administrative legislation, as well as, according to the author of the article, for the purpose of the long–awaited differentiation in the system of procedural legislation of two codified acts - the CAS and, possibly, the soon-to-be Procedural Code of Administrative Offenses.

It is these key circumstances that should determine the immediate transition to the regulation of administrative and legal relations by the norms of the new Administrative Code of the Russian Federation ^[1].

In this article, the author will consider a change in the approach to the presentation by the legislator of the system of administrative penalties, as well as the procedure for the appointment of administrative punishment.

1. The current administrative legislation provides that when committing several administrative offenses, punishment is imposed for each offense committed. The text of the draft of the new Administrative Code of the Russian Federation provides for the exclusion of the possibility of imposing administrative penalties for several homogeneous administrative offenses committed by a person.

An indication of the definition of a homogeneous administrative offense is not contained in administrative legislation, but takes place in judicial practice. Thus, in accordance with paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 03/24/2005 No. 5 "On some issues arising from courts when Applying the Code of Administrative Offences of the Russian Federation", a homogeneous administrative offense is actually several administrative offenses, which include a single generic object of encroachment ^[2]. According to the author, it is necessary to directly indicate the signs of a homogeneous administrative offense in the new administrative legislation. Understanding under a homogeneous administrative offense not only the composition of the offense specified in one article of the Special Part, but also in several, will eliminate the problem of unjustifiably bringing a person to administrative responsibility, will contribute to the real, rather than formal implementation of the principles of justice and proportionality of administrative penalties.

2.      A warning, as a measure of administrative punishment, will be imposed for the first time committed an administrative offense, even if it is not directly provided for by the sanction of the article of the Special Part as an administrative punishment if the administrative offense committed by the person does not entail aggravating circumstances and if the administrative offense does not have the character of a gross administrative offense.

Despite this optimal decision of the legislator, aimed at prioritizing the preventive function over the punitive one, there is a problem of the legislative classification of administrative offenses into rough and rough, moreover, such a classification can be clearly traced in the doctrine, but, unfortunately, such a classification, apparently, will not be in the legislative structure, and the differentiation of a rough administrative offense from a rough one will become one of the powers of the law enforcement officer (body or official of administrative jurisdiction).

Thus, V. I. Surgutskov proposes to recognize as gross such a socially dangerous administrative offense, when considering which it is necessary to apply certain measures to ensure the proceedings in cases of administrative offenses ^{[9, p. 548]}. Kozhevnikov O. A., Nikonova Yu. Sh. define the categories of rudeness of an administrative offense, among which: the type of administrative offense (the authors indicate mainly socially dangerous administrative offenses in the list), aggravating circumstances, a threat to the security of the individual, society and the state, the repetition of administrative offenses committed ^{[6, pp. 100-101]}. According to the author of this article, the legislative consolidation of over the listed categories to distinguish between gross and non-gross administrative offenses will avoid the evaluative value of the mentioned classification by the law enforcement officer, incorrect application of substantive law and abuse of evaluative categories by the law enforcement officer.

3.      In the current Administrative Code of the Russian Federation, there is an upper and lower limit of administrative punishment in the form of a fine, a discount is provided for the advance payment of a fine only for a non-rough administrative offense in the field of security of an administrative offense. So, another draft, the draft Code of Administrative Responsibility, instead of the upper and lower limit of the size of the fine (i.e. specific amounts), based on the legislative experience of the Eurasian Economic Union, calculated indicators (basic values) are introduced, below which a fine cannot be imposed (for example, for officials and entrepreneurs, this value will be at least 0.5; for individuals – 0.1, for legal entities – at least 2 calculated indicators) ^{[1, p. 199]}. In the draft of the new Code of Administrative Offences, the legislator proposes to leave the higher and lower limits of the fine amounts only at the level of the laws of the constituent entities of the Russian Federation. It will be possible to take advantage of a discount on the advance payment of a fine to a person who has committed any administrative offense (with the exception of gross administrative offenses). Thus, such changes are aimed at reducing the administrative burden in the form of paying an administrative fine, as well as encouraging offenders to pay an administrative fine on time.

4.      The current administrative legislation provides for the confiscation of only the instrument or object of an administrative offense, and the instrument or object that has not been withdrawn from civil circulation. In the text of the draft of the new Administrative Code of the Russian Federation, it is allowed to confiscate not only the instrument or object of committing an administrative offense, but also other property that is not such. Confiscation of other property will be carried out only if there are the following criteria: "the property is owned by the person who committed an administrative offense (in permanent or temporary possession); the owner has not taken measures to eliminate the causes and conditions of the commission of an administrative offense, i.e. allowed its commission through the use of this property (for example, may be subject to seizure from the offender's motor vehicles, small vessels, etc.).

In addition, in the text of the draft, the legislator retains the general rule of confiscation: "confiscation is the forced gratuitous transfer to state ownership of things that are not restricted in circulation." Please note that in legal practice, of course, things that are not in legal circulation are subject to seizure (limited in civil circulation, for example, counterfeit products). The legislative structure, which is now preserved and is present in the Draft Administrative Code of the Russian Federation, artificially restricts the category of things subject to confiscation as an instrument or object of an administrative offense. It is necessary to change the content of the definition of confiscation: "confiscation is the forced gratuitous conversion into state ownership of an instrument or object of an administrative offense, or other things that served as a reason or condition for committing an administrative offense, both limited in civil circulation and not limited in it."

5.      In today's Administrative Code of the Russian Federation, the deadline for mandatory work is two hundred hours, the list of categories of persons to whom mandatory work, as a measure of administrative punishment, cannot be applied is limited. In the text of the draft of the new Administrative Code of the Russian Federation, the deadline for mandatory work is sixty hours, the legislator additionally attributed to the circle of persons in respect of whom this penalty is not applied: disabled children, single parents (or persons replacing them) who raise a child under 14 years of age, persons caring for a disabled person I and II groups, including for a disabled child, and among civil servants, the list has been supplemented with categories: employees of the prosecutor's office, employees of diplomatic missions, consular institutions of the Russian Federation, permanent missions of the Russian Federation to international (interstate, intergovernmental) organizations, other official representations of the Russian Federation and representative offices of federal executive authorities located abroad Moreover, the legislator provided for the non-application of compulsory work to women who have children not under the age of three, but under the age of 14.

We point out that the expanded list of persons will also be characteristic of the application of administrative punishment in the form of arrest with the addition of the category of minors and persons with a disease specified in the list of diseases that prevent the imposition of this type of punishment. Such changes, in the author's opinion, are important taking into account the social status of many categories of persons, as well as the legal status of persons of a special category who ensure the security, protection and protection of the interests of the state.

6.      Analyzing the text of the draft of the new Administrative Code, the following types of administrative penalties are undergoing serious changes: administrative expulsion from the Russian Federation of a foreign citizen or a stateless person, administrative suspension of activity (will be excluded from the system of administrative penalties), deprivation of a special right. Such changes related to the transformation of administrative penalties were due to the need to improve administrative and legal norms: to eliminate contradictions in legislative regulation, to rid the legislator of the ineffectiveness of the application of various administrative penalties. The change in the characteristics and procedure for the application of these administrative punishments is aimed at strengthening the preventive effect on the offender (increasing a certain efficiency coefficient in the application of punishment).

Thus, in comparison with the current administrative legislation, the draft of the new Administrative Code of the Russian Federation provides for the possibility of not appointing and replacing administrative punishment in the form of administrative expulsion from the Russian Federation of a foreign citizen or a stateless person with another type of administrative punishment.

In comparison with the current administrative legislation, the draft of the new Administrative Code of the Russian Federation will exclude administrative suspension of activities from the system of administrative penalties, as previously indicated, and in return, an administrative (temporary) ban on activities will be applied from the list of measures to ensure proceedings on an administrative offense, however, in order to avoid confusion of institutions, a temporary ban on activities will be excluded from the list of procedural security measures. An administrative ban on the commission of certain actions, as a measure of administrative punishment, will have certain types, for example, an administrative ban on the operation of vehicles, the application of this measure of administrative punishment will be the exclusive authority of the court, in contrast to the procedure for the application of a security measure in the form of a temporary ban on activities by a control or supervisory authority.

Unfortunately, in accordance with the current administrative legislation and in accordance with the text of the draft of the new Administrative Code of the Russian Federation, the deprivation of a special right is applicable only to an individual. According to the author of the article, it is necessary to extend the application of this administrative punishment to legal entities. By analogy with the special legal capacity of an individual, it should be argued that a legal entity has the same characteristic special (limited) legal capacity on the basis of a permit document, for example, to implement only those activities for which a corresponding license has been obtained, i.e. the presence of a special right is characteristic not only for an individual, but also for a legal entity. Thus, in the draft of the new Administrative Code of the Russian Federation, it should be established that "in connection with a gross violation of the conditions and procedure for the use of a special right granted by a permit document, the deprivation of a special right as a measure of administrative responsibility is applicable both to an individual and to a legal entity."

Regarding the change in the procedure for the application of administrative punishment, it is worth noting the change in the statute of limitations for bringing to administrative responsibility. In accordance with Article 4.5 of the current Administrative Code of the Russian Federation, the total limitation period for bringing to criminal responsibility is 2 months, and on the basis of Article 3.31 of the draft new Administrative Code of the Russian Federation, the total limitation period for bringing to administrative responsibility is one year. An increase in the total limitation period for bringing to administrative responsibility will ensure the completeness, objectivity and correctness of the consideration and resolution of the case of an administrative offense. The list of circumstances mitigating administrative responsibility is also supplemented, for example, by a circumstance in the form of an administrative offense committed by a person raising a child under the age of fourteen alone. In turn, the appearance of other mitigating circumstances is a consequence of the humanization of administrative legislation, through which the legislator takes into account the social status of a person and a wide range of life circumstances that were the causes and conditions for the commission of administrative offenses.

The categorization of administrative and legal norms regarding the institution of administrative punishment has also undergone changes. Thus, cases of exemption from administrative responsibility and from administrative punishment, replacement of administrative punishment, postponement, installment and suspension of execution of administrative punishment are combined in a separate chapter and regulated in detail, issues of types and procedure for the application of administrative penalties against minors are set out in a specially designated chapter of the code. It is disproportionately important to introduce special measures of administrative responsibility to minors by analogy with measures of educational influence to minors in criminal law, for example, restriction of leisure or the establishment of special requirements for a minor). Changes in the rubrication (presentation) of administrative and legal norms regarding administrative punishment will allow to stabilize the legal regulation of this institution, as well as to specify (regulate) an additional list of administrative legal relations related to the application of administrative punishment. It should be noted that it remains common in the current and new administrative legislation to leave 10 types of administrative punishments, to outline the content of the institute of administrative punishments by type, purpose and order of their application, by varieties for basic and additional.

Nikanorova M. V. rightly points out the main purpose of the draft of the new Administrative Code: "Legislators will no longer face the task of punishing and fining. Priority will be given to the prevention of violations, including forced" ^{[8, p. 181]}. In general, with the introduction of the new Administrative Code of the Russian Federation, guarantees of respect for rights and legitimate interests will increase, legal regulation of relations in the sphere of administrative punishment and administrative responsibility will be stabilized, the possibilities of providing a preventive function will be expanded, administrative legislation will be fully humanized. However, delays associated with the entry into force of the Administrative Code of the Russian Federation lead to changes in the approaches outlined in the original text, to changes in social (socio-political) realities, introduce ambiguity and uncertainty in the possible adoption and entry into legal force of the new Administrative Code of the Russian Federation.

Thus, as part of the final conclusion, we note that the adoption of the new Administrative Code of the Russian Federation in terms of changing the approach to the application of administrative penalties is a forced necessity due to both the optimization of the legal regulation of the system of administrative penalties and the priority goals of such changes that were indicated above. The abandonment of the current Administrative Code of the Russian Federation will continue to destabilize the legal regulation of administrative legal relations, exclude the full application of effective measures for the prevention of administrative offenses, contain in most cases a punitive purpose of administrative punishment and a high penalty burden for certain categories of offenders.