Current issues of administrative responsibility for bullying (harassment) of a participant of the educational process

Abstract

The article is devoted to the topical issue of administrative responsibility for bullying (harassment) of a participant of the educational process as an important protective legal measure, a measure of administrative coercion designed to ensure effective countermeasures against such a phenomenon as bullying (harassment). The article examines various definitions of the concept of administrative responsibility given by scientists and proposes its own definition. We consider the grounds of administrative responsibility to be normative, factual and procedural, for the conducted research the factual basis is particularly important, that is, the commission of an administrative offense, the composition of which is fixed in Article 173-4 of the Code of Ukraine on Administrative Offenses (hereinafter - CAOU) - bullying (harassment) of a participant of the educational process. Having analyzed the composition of this offense, it becomes obvious how imperfect and contradictory this norm is, which is revealed in the study and relevant suggestions and recommendations are provided.
 Emphasis is placed on the importance of the correct qualification of an illegal act that contains signs of bullying, as it has a wide variety of manifestations and can be qualified as a corresponding criminal offense that entails criminal, not administrative, liability.
 Having studied the composition of the administrative offense of bullying (harassment) of a participant of the educational process, it was established that the first part, as well as the third and fourth parts of Art. 173-4 of CAOU provide that this administrative offense can be committed by minors or minors between the ages of fourteen and sixteen, thus classifying these persons as subjects of an administrative offense, which contradicts both the general theory of law, the theory of administrative law, and norms of CAOU itself; at the same time, in this case, the legislator assigns administrative responsibility for bullying to parents or persons who replace them, which contradicts many important principles of administrative responsibility. Article 12 of CAOU establishes that persons who have reached the age of sixteen at the time of committing an administrative offense are subject to administrative liability. Based on this regulatory provision, it is generally recognized in administrative law that the subject of an administrative offense is a compos mentis individual who has reached sixteen years of age at the time of committing an administrative offense. If an illegal act, which objectively has the characteristics of an offense provided by administrative legislation, was committed by a person who has not reached the age of 16, then such an act cannot be recognized as an administrative offense, since there is no subject of the offense, and therefore the composition of the offense, such actions in the theory of law are recognized as objectively illegal actions. Therefore, we point out the impossibility of considering as an administrative offense an act that has signs of bullying and which is committed by minors and minors between the ages of fourteen and sixteen, as stipulated in Article 173-4, because there is no composition of an administrative offense due to the absence of the subject of the offense, and therefore, there is no factual basis for administrative responsibility for such actions, and therefore it cannot be applied in this case. As a result of the research, it is proposed to amend Articles 173-4 and 184 of the Code of Ukraine on Administrative Offenses in order to bring them into line with other Code norms, provisions of the general theory of law and the science of administrative law, and the principles of administrative responsibility.