Repressive nature of the application of administrative sanction provided by part 1 of article 20.25 of the CAO RF (failure to pay an administrative fine within the term provided by the CAO RF) and the need to take into account circumstances mitigating administrative punishment

Barkova Alina Vasil'evna ORCID: 0000-0001-9470-3070 PhD in Law Associate Professor, Department of Legal Regulation of Economic Activity, Financial University under the Government of the Russian Federation 38 Shcherbakovskaya str., Moscow, 105187, Russia rav6232551@mail.ru Other publications by this author

Chernyshenko Il'ya Gennad'evich ORCID: 0000-0003-4066-8446 Student, Financial University under the Government of the Russian Federation 38 Shcherbakovskaya str., Moscow, 105187, Russia cheig@inbox.ru Other publications by this author

Recently, there has been a tendency to increase the number of administrative cases considered for non-payment of fines under Part 1 of Article 20.25 of the Administrative Code of the Russian Federation. For example, 1,703,888 such cases were initiated and considered in 2020, and 2,010,948 cases were already filed in 2021 ^[9]. The increase in the number of administrative offense cases under Part 1 of Article 20.25 of the Administrative Code of the Russian Federation can be explained by various factors, including economic conditions (economic instability in a market economy, financial difficulties in the financial situation of citizens and entrepreneurs), and tightening control by government agencies.

Article 4.2 of the Code of Administrative Offenses (hereinafter – the Administrative Code of the Russian Federation) provides mitigating circumstances that are taken into account when assigning an administrative punishment to a person, both list circumstances and an indication by the legislator of other specific circumstances that can also be recognized as mitigating (i.e. an open list), depending on the discretion of the official (body) considering the case, and the conditions of a particular case.

The importance of mitigating circumstances in sentencing is obvious: they are aimed at reducing the size of the sanction provided for in the article of the special part of the Administrative Code of the Russian Federation.

For example, in case No. A60-235/2022 of 02/15/2022 on violation of currency legislation by an employer, expressed in the payment of wages to non-residents in cash (Part 1 of Article 15.25 of the Administrative Code of the Russian Federation), the Arbitration Court of the Sverdlovsk Region recognized as a mitigating circumstance inconsistency with the interests of the person being prosecuted, the punitive nature of liability for this offense [Decision Arbitration Court of the Sverdlovsk Region dated 02/15/2022 in case No. A60-235/2022]. The Court concluded that the administrative sanction applied by the tax authority to the offender is disproportionate and restricts his rights to freedom of economic activity and private property. In view of the need to "harmonize" the interests of the state and the offender, as well as in view of the fact that bringing to responsibility for this composition already carries a preventive function, the court recognized the imposed sanction as unjustifiably punitive, not corresponding to the severity of the offense and the degree of guilt. In order to impose a fair and proportionate punishment, the court, individualizing the punishment, decided to reduce the fine by half.

This example demonstrates the importance of law enforcement officers taking into account circumstances that may mitigate the responsibility of the perpetrator. Instead of considering bringing to administrative responsibility as a punitive mechanism, law enforcement officers should impose a fair punishment, taking into account various circumstances that may affect the final decision on an administrative offense case, to ensure the application of a more balanced and effective sanction.

Further, reflecting on the possible legal consequences, for example, in case of non–payment of an administrative fine reduced by half within a period determined by administrative legislation, there is again a clash of "punitive interest", i.e. the desire to punish the offender for the offense committed, and "preventive interest", whose task is to prevent future violations and protect public interests, but such a clash has the place is no longer between the law enforcement officer and the offender, but between the legislator and the offender.

Thus, Part 1 of Article 20.25 of the Administrative Code of the Russian Federation establishes administrative punishment in the form of twice the amount of the previously imposed administrative fine in case of its involuntary payment within the time allotted by the legislator. According to the authors of this article, a twofold increase in the amount of the fine for involuntary payment may devalue the previously reduced penalty by half, namely:

1) doubling its size will lead to a significant change in the amount that the violator must pay: in addition to the doubled amount, the offender will also have to pay the enforcement fee in case of collection of a fine by bailiffs - this will be a financially (financially) burdened position for him;

2) the application of such administrative punishment will be unfair, unjustified, inappropriate and punitive in relation to the violator;

3) there will be no sense of previously taken into account mitigating circumstances for what this person has done.

Maximov I.V. ^[8] in his own monograph (already in 2009) states the liberalization of punitive coercive measures in administrative legislation. At the same time, it is worth noting that a punitive policy that strengthens the repressive qualities of an administrative measure of responsibility will not correspond to the interests and tasks facing the state regarding the use of means of state-governmental coercion. The strengthening of such a punitive policy will affect the formation of a negative attitude of the offender towards the justice system and increase the likelihood of a repeat of such offenses.

Batenov F.K. ^[1] writes about the lack of expediency and validity of the application of Article 20.25 of the Administrative Code of the Russian Federation on the example of bringing to administrative responsibility for violations in the field of road safety. The idea of Batenov F.K. and the authors of this article is identical – doubling the amount of the fine carries only a negative consequence in the form of significant financial losses, especially for officials and legal entities.

Serkov P.P. ^[10], investigating administrative punishment in the form of a twofold increase in the fine for its involuntary payment, back in 2012 rightly called it "the potential for administrative repression without special need." Indeed, it is more rational to use other legal instruments that create conditions for the disadvantage of evading the execution of acts on the imposition of administrative fines.

According to Zhiltsov A.V. ^[4], the fiscal interest of the state, pursued within the framework of the application of administrative punishment provided for in Part 1 of Article 20.25 of the Administrative Code of the Russian Federation, is a secondary task in relation to the need to prevent the formation of an irresponsible attitude of citizens to the performance of their duties and to counteract the strengthening of a sense of impunity. The author also proposes to replace in the construction of the article the "double" payment of a fine with fixed amounts of administrative sanction (upper and lower limits), which also deserves attention, fully corresponds to the sign of individualization of punishment in each specific case and makes administrative punishment more fair and predictable.

Magomedova Z.I. ^[7] proposes to redact the structure of Article 20.25 of the Administrative Code of the Russian Federation. So, she justifies this by the fact that this norm is not individualized for each subject of an administrative offense separately, which leads to law enforcement problems and suggests highlighting the administrative responsibility of legal entities for this offense in a separate paragraph of the article. According to the authors of the article, it is necessary to individualize administrative responsibility for such an offense not only for legal entities, but also for all business entities. The authors of the article also propose that all subjects of administrative responsibility for this offense be exempted from paying a double fine if there is an indication in the initial decision (resolution) on bringing to administrative responsibility against the perpetrator of mitigating circumstances, the establishment of which led to a decrease in the amount of administrative sanctions by 1.5 or more times. The consolidation of such a legislative change will contribute to the predominance of the preventive policy of the state over the punitive one, the establishment of a balance between the state and the person being held accountable, in general, and ensuring proper and effective protection of state and public interests.

Zyryanov S.M. ^[5] raises a serious problem related to the inconsistency of Article 20.25 of the general part of the Administrative Code of the Russian Federation when imposing such an administrative penalty against a legal entity. Thus, within the meaning of Part 1 of Article 2.10 of the Administrative Code of the Russian Federation, legal entities are held legally liable if this is expressly provided for by the provisions of the article of the Special Part of the Administrative Code of the Russian Federation. However, in Article 20.25 of the Administrative Code of the Russian Federation there is no indication that a legal entity can be held accountable, and, according to S.M. Zyryanov, administrative penalties provided for above the specified article are typical and applicable only to individuals, not legal entities. The authors of this article agree with this opinion and consider this problem to be an indicator of the imperfection of the legislator's legal technique in this part, which leads to the fact that if a legal entity is held liable under Article 20.25 of the Administrative Code of the Russian Federation, then such an element as a subject may simply be absent, therefore, there may not be an administrative offense.

In the Decision of the justice of the peace of the judicial district No. 6 of the Pervomaisky district of Izhevsk, Udmurt Republic dated August 12, 2016 in case No. 5-489/2016, the justice of the peace, considering an administrative offense provided for in Part 1 of Article 20.25 of the Administrative Code of the Russian Federation, indicated that recognition of an administrative offense as insignificant in accordance with Article 2.9 of the Administrative Code of the Russian Federation is the right of the court ^[6]. The court may recognize such an administrative offense as insignificant, and, therefore, release a person from administrative responsibility, limiting himself to an oral remark, subject to the following condition: the nature of the offense, the degree of its public danger and the damage caused imply an unambiguous conclusion about the insignificance of the committed administrative offense. It is implied that the inclusion of a reference to the provision of Article 2.9 of the Administrative Code of the Russian Federation in the "line of defense" of a person brought to administrative responsibility under Article 20.25 of the Administrative Code of the Russian Federation may help this person achieve a more "mild" form of punishment, or challenge an already imposed administrative punishment if there are sufficient arguments confirming the insignificance of the violation.

Thus, in the opinion of the authors of this article, other legal instruments should be used when identifying the problem of non-payment or systematic non-payment of an administrative fine, for example: establishing a fixed amount of sanction; establishing the possibility of exemption from this type of punishment in case of mitigating circumstances when bringing to responsibility for the initial offense, the use of production security measures (as a guarantee execution of punishment), or the commission by the bailiff of executive actions outside the framework of the administrative and legal field. Making a decision (resolution) over and over again under Article 20.25 of the Administrative Code of the Russian Federation does not solve this problem of voluntary payment of an administrative fine, but, on the contrary, increases the burden on the staff of bailiffs, courts and often does not ensure the final receipt of the amount of the sanction to the budget.