Administrative liability for violation of legislation in the field of consumer protection: on the issue of determining the object of the offense

Chagina Elizaveta Mihailovna Junior Researcher ; Center of Private Law ; Institute of Legislation and Comparative Law under the Government of the Russian Federation 31 Bolshaya Cheremushkinskaya str., Moscow, 117218, Russia chagina.elizaveta1997@mail.ru Other publications by this author

Chamina Anna Andreevna Lecturer; Department of Organization of activities of road safety units; Moscow Regional Branch of the Moscow University of the Ministry of Internal Affairs named after V.Ya. Kikot 117437, Russia, Moscow, Akademika Volgina str., 12 support_mosu@mvd.ru

The provision of additional legal guarantees to the consumer citizen as the weak side of the relationship, designed to protect him from possible abuse by the counterparty, would not be complete without establishing legal liability for violation of those rights guaranteed to him by the Law of the Russian Federation dated 02/07/1992 No. 2300-1 "On Consumer Rights Protection" (hereinafter – the Law on Consumer Rights Protection). At the same time, since the "balance of forces" between the consumer and the seller, the contractor or other business entity in terms of information possession, negotiation capabilities and the possibility of imposing its will on the counterparty has a significant asymmetry in favor of the latter, the protection and protection of citizens' rights in this case needs to be ensured not only by private legal means, but also by public measures- legal responsibility in order, firstly, to compensate for the limited opportunities of a citizen to protect his rights in private, and secondly, to prevent mass violations of the rights of consumer citizens by professional entrepreneurs. That is why the Law on Consumer Protection establishes that violation of consumer rights guaranteed by law entails not only civil law, but also public law, in particular, administrative liability (art. 43). In this regard, the question arises exactly which norms of the Code of Administrative Offences of the Russian Federation (hereinafter referred to as the Administrative Code of the Russian Federation) establish sanctions for violation of consumer rights.

It should be said that violations in the field of consumer protection legislation are mentioned as a separate category in Article 4.5 of the Administrative Code of the Russian Federation, which establishes the limitation period for bringing to administrative responsibility. At the same time, in the Special part of the Administrative Code of the Russian Federation, this group of offenses is in no way distinguished. The violation of consumer rights is explicitly indicated in the dispositions of only two articles of the Code: Article 14.7 "Consumer deception" and Article 14.8 "Violation of other consumer rights". It seems, however, that these two articles cannot exhaust the composition of administrative offenses in the field of protection and protection of consumer rights.

It should be noted that in the doctrine, not much attention is paid to the issues of qualification of certain administrative offenses as violating consumer rights, their classification and definition of their object. One of the major works devoted to the problems of administrative responsibility for violation of consumer rights is the dissertation by M.A. Katys, in which the author distinguishes administrative offenses in the field of protection and protection of consumer rights into a special category based on the commonality of the object, which is public relations related to ensuring and protecting consumer rights, and also provides the grounds for their classification administrative offenses related to violation of trade rules, violations that infringe on the established management procedure in the field of consumer protection, and violations that infringe on the safety of goods, works and services for the life and health of the consumer. ^{[1, pp. 107-164]} However, this study, being of some interest from a doctrinal point of view, is not fully relevant, since it is devoted to the analysis of the provisions of the RSFSR Code of Administrative Offences of 1984 in force at that time. In modern research devoted to issues of administrative law, as well as the problems of consumer protection, the problems of administrative liability for violation of consumer rights are rarely given detailed consideration. It is necessary to highlight the dissertation research by E.I. Zhadanova, in which the author develops the concept of an administrative offense in the field of consumer protection, distinguishes this group of administrative offenses from related ones, and analyzes the criteria for classifying one or another composition of an administrative offense as violations in the field of consumer protection. ^[2] Also, the issues of administrative liability for violation of consumer rights were considered in sufficient detail by P.P. Kabytov and O.E. Starodubova. ^{[3, c. 174-184.]}

At the same time, it should be noted that the doctrine does not have an unambiguous approach to exactly which types of administrative offenses should be attributed to violations in the field of consumer protection and protection.

Thus, E.I. Zhadanova believes that this category, along with the above violations provided for in Articles 14.7 and 14.8 of the Administrative Code of the Russian Federation, also includes the sale of goods without information about their energy efficiency class (Part 2 of Article 9.16 of the Administrative Code of the Russian Federation); violation of veterinary and sanitary rules in the field of sale of livestock products (Part 1 of Article 10.8 of the Administrative Code of the Russian Federation); sale of goods, performance of works or provision of services to the public of inadequate quality or in violation of the requirements established by the legislation of the Russian Federation (Article 14.4 of the Administrative Code of the Russian Federation); violations of legislation on retail trade in medicines (Article 14.4.2 of the Administrative Code of the Russian Federation); sale of goods, performance of works or provision of services in the absence of established information about the manufacturer, contractor the seller or other information, the obligation to provide which is provided by the legislation of the Russian Federation (Part 1 of Article 14.5 of the Administrative Code of the Russian Federation); violation of the rules for the sale of certain types of goods (Article 14.15 of the Administrative Code of the Russian Federation); as well as a number of violations related to the sale of ethyl alcohol, alcoholic and alcohol-containing products (parts 1 and 3 of Article 14.16 of the Administrative Code of the Russian Federation). ^{[2, pp. 55-56]} The criterion on the basis of which it is proposed to single out violations in the field of consumer protection in a separate group, the author indicates the existence of "contractual relations between a legal entity and a consumer when selling goods, performing works and providing services." ^{[2, c. 48]}

P.P. Kabytov and O.E. Starodubova, in addition to the above violations, also include in the category under consideration the release or importation of goods into the territory of the Russian Federation without including information about their energy efficiency class or other mandatory information about energy efficiency in technical documentation, labeling, etc. (Part 1 of Article 9.16 of the Administrative Code of the Russian Federation); illegal sale of goods, free the sale of which is limited or prohibited (Article 14.2 of the Administrative Code of the Russian Federation); violation of the pricing procedure (Article 14.6 of the Administrative Code of the Russian Federation); retail sale of alcohol to minors (Part 21 of Article 14.16 of the Administrative Code of the Russian Federation) and retail sale of alcoholic beverages in polymer consumer containers with a volume of more than 1.5 liters (part 22 of Article 14.16 of the Administrative Code of the Russian Federation). ^{[3, c 174]} The criterion for combining these compounds into one group is indicated by the authors as the object of unlawful encroachment, namely legal relations with the participation of consumer citizens. ^{[3, c. 175]}

Thus, the inclusion of certain compositions in the category of violations in the field of protection and protection of consumer rights in the literature is based on the commonality of the object of encroachment, which should be understood as "public relations protected by the norms of legislation on administrative responsibility." ^{[4, p. 95]} At the same time, in the doctrine of administrative law, a generic object is distinguished as a relationship that develops in a certain sphere of human activity, and a specific object as a special group of social relations within the same genus, united by specific characteristics. ^{[5, pp. 489-490]} At the same time, the specific object must be distinguished from the direct object – specific social relations that are harmed by unlawful encroachment. ^{[4, c. 95]}

The generic object serves as the basis for grouping the compositions of administrative offenses according to the chapters of the Administrative Code of the Russian Federation. ^{[6, p. 117-114; 7, p. 83]} From the above points of view, it can be found that the authors combine administrative offenses that have different generic objects into a single group. Thus, the violations specified in Parts 1 and 2 of Articles 9.16 of the Administrative Code of the Russian Federation have a generic object of legal relations in the field of energy. In turn, the generic object of an administrative offense, responsibility for which is provided for in Part 1 of Article 10.8 of the Administrative Code of the Russian Federation, is relations in the field of agriculture and veterinary medicine, and violations specified in art. 14.2, 14.4, 14.4.2, 14.5, 14.6, 14.7, 14.8, 14.15 and 14.16 of the Administrative Code of the Russian Federation – relations in the field of entrepreneurial activity.

It seems, however, that the difference of the generic object in this case does not give grounds to assert that the compositions in question cannot have a common specific object, since one administrative offense may encroach on various legal relations, and therefore the exact definition of the object of a specific administrative offense may cause certain difficulties. ^{[6, pp. 112-113]} Indeed, an administrative offense can harm several different types of legal relations. For example, the offense specified in Part 1 of Article 10.8 of the Administrative Code of the Russian Federation, indeed, has the ultimate consequence of violating consumer rights, namely the right to ensure that the purchased goods are safe for his health and life (Part 1 of Article 7 of the Law on Consumer Protection). However, this is precisely the consequence of committing an offense, while this administrative offense encroaches on relations in the field of sanitary and epidemiological welfare of the population and state veterinary control. It is these legal relations that represent the main object of encroachment, whereas relations involving consumers are an additional one. The Constitutional Court of the Russian Federation drew attention to the possibility of an administrative offense, along with the main object of encroachment, also an additional (or optional) one, causing harm to which is a consequence of the committed offense, in its Resolution No. 3-P dated 01/15/2019. At the same time, the Constitutional Court concluded that when determining the limitation period for bringing to justice under one or another article of the Administrative Code of the Russian Federation, it is important to determine those public relations that are directly protected by the relevant norm of the Code, and cannot depend on the consequences of violations committed. In essence, this means that when qualifying an act and determining the limitation period for bringing to responsibility, it is the main object of an administrative offense that must be correctly identified.

In this regard, it is necessary to agree with the opinion expressed in the literature that since the vast majority of the norms of the Administrative Code of the Russian Federation are aimed at "ensuring the interests of citizens and organizations in several sectors and spheres of public administration at once," insofar as the correct qualification of an administrative offense requires "the establishment of a priority goal of legislation regulating relations for encroachment on which administrative responsibility". ^{[8, c. 235]}

The content of Articles 14.7 and 14.8 of the Administrative Code of the Russian Federation allows us to conclude that all the elements of administrative offenses fixed in them are united by the commonality of the object, i.e. those relations that are harmed by unlawful encroachment: in all cases, one of the parties to the legal relationship will be a consumer – a citizen who purchases goods, works or services for personal, family and other needs that are not related to the implementation of entrepreneurial activities (paragraph 3 of the preamble of the Law on Consumer Protection), and the other party is a person who sells goods, performs works or provides services (that is, a seller or contractor), or provides information about goods and services to the consumer (for example, the owner of an information aggregator), or other persons with whom the consumer either enters into contractual relations, or who are legally assigned certain obligations towards consumers at the stage of concluding the contract (for example, information duties) or at the stage of its execution (for example, the obligations of the manufacturer, importer, authorized organization arising from the consumer's claims against low-quality goods). That is, the direct object of an administrative offense is civil law relations, to which a consumer citizen is a party, which is confirmed in judicial practice (see Resolution of the Arbitration Court of the Ural District dated 05/17/2024 No. F09-1235/24 in case No. A50-20052/2023; Resolution of the Arbitration Court of the Moscow District dated 08/01/2024 No. F05-10463/2024 in case No. A40-137806/2023; Resolution of the Arbitration Court of the Volga Region dated 08/09/2024 No. F06-6346/2024 in case No. A65-38620/2023).

A similar conclusion should be drawn on the issue of determining the object of an administrative offense specified in Part 1 of Article 14.5 of the Administrative Code of the Russian Federation. The obligation to provide the consumer with information about the counterparty arises at the stage that precedes the conclusion of a contract with him (Articles 8 and 9 of the Law on Consumer Protection). Consequently, violation of this requirement of the law has a negative impact on the relationship between the consumer and the seller of the goods (or another person), that is, these legal relations will constitute the object of the offense. This circumstance was noted by the Supreme Court of the Russian Federation, which pointed out that Part 1 of Article 14.5 of the Administrative Code of the Russian Federation has the same relations as Part 1 of Article 14.8 of the Administrative Code of the Russian Federation, namely, "legal relations regulated by law and other normative legal acts arising between consumers on the one hand and the manufacturer, seller of products - on the other other" (see the Ruling of the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation dated 05/21/2020 No. 302-ES19-20981 in case No. A33-5480/2019).

The same statement is true for Article 14.15 of the Administrative Code of the Russian Federation, according to which liability arises for violation of the rules for the sale of goods to consumers. The courts, when classifying offenses under this article, proceed from the fact that the object of encroachment is "property relations regulated by the current legislation on consumer protection when trading under a retail sale agreement" (see for example. Resolution of the Arbitration Court of the Volga District dated 06/18/2021 No. F06-4504/2021 in case No. A12-20077/2020; Resolution of the Arbitration Court of the Volga District dated 01/26/2023 No. F06-53/2023 in case No. A65-11758/2022). This makes this composition of an administrative offense different, for example, from the compositions provided for in Parts 1, 21, 22 and 3 of Article 14.16 of the Administrative Code of the Russian Federation, in which the main object of encroachment is legal relations on state regulation of the production and turnover of ethyl alcohol, alcoholic and alcohol-containing products, while encroachment on civil law relations involving consumers here it acts as a consequence of the commission of this violation (see e.g. Resolution of the Nineteenth Arbitration Court of Appeal dated 06/17/2022 No. 19AP-2561/2022 in case No. A36-9049/2021).

A similar conclusion can be made when resolving the issue of determining the object of an administrative offense provided for in Article 14.4 of the Administrative Code of the Russian Federation. The sale of goods, the performance of works or the provision of services of inadequate quality, without any doubt, entails a diminution of the rights of citizens protected by the Law on Consumer Protection. For example, violation of the Rules for the provision of postal Services (approved by the Order of the Ministry of Finance of the Russian Federation dated 04/17/2023 No. 382) constitutes an administrative offense specified in Part 1 of Article 14.4 of the Administrative Code of the Russian Federation, since the object of encroachment is legal relations related to the provision of services to the consumer (see e.g. Resolution of the Arbitration Court of the Volga-Vyatka District dated 02/21/2023 No. F01-7635/2022 in case No. A43-8158/2022).

With regard to other considered administrative offenses, it seems reasonable to assert that in them the relationship with the participation of consumers is an additional, and not the main object of encroachment. For example, it seems that for the composition provided for in Part 2 of Article 9.16 of the Administrative Code of the Russian Federation, the main object of an administrative offense will be legal relations in the field of energy conservation and energy efficiency improvement, although this offense, of course, also encroaches on the consumer's right to receive information about the product. The same can be said with regard to the offense provided for in Article 14.6 of the Administrative Code of the Russian Federation, the main object of which is not civil law relations with the participation of consumers, but administrative legal relations on state regulation in the field of pricing (see Resolution of the Arbitration Court of the North-Western District dated 04/03/2023 No. F07-1262/2023 in case No. A56-93384/2020; Resolution of the Arbitration Court the Court of the Far Eastern District dated 04/02/2024 No. F03-978/2024 in case No. A59-3842/2023). Another example is Article 14.4.2 of the Administrative Code of the Russian Federation, where the main object of encroachment is relations in the field of state control in the field of drug trafficking (see e.g. Resolution of the Arbitration Court of the Central District dated 06/01/2023 No. F10-2635/2023 in case No. A83-9425/2022), despite the fact that such offenses may also infringe on the rights of citizens who consume medicines. ^{[9, c. 187-201]}

Thus, it seems reasonable to single out administrative offenses in the field of consumer protection in a narrow sense, which should be understood as offenses that have civil law relations as a direct object of encroachment, one of the parties to which is a consumer citizen. In our opinion, this group should include the compositions provided for in Part 1 of Articles 14.5, Articles 14.7, 14.8, 14.15 of the Administrative Code of the Russian Federation, as well as Article 14.4 of the Administrative Code of the Russian Federation, since under this article the object of encroachment may be legal relations in which the consumer is not a party. In a broad sense, administrative offenses in the field of consumer protection should be understood as offenses that have a direct object of both civil law relations themselves, protected by legislation on consumer protection, and other legal relations, encroachment on which leads or may lead to a diminution or violation of consumer rights.