Administrative Liability Research Articles

Illegal logging or illegal transportation, storage, sale of forest: criminal and legal characteristics of the environmental offense

The article is devoted to the criminal and legal characterization of illegal logging or illegal transportation, storage, and sale of forest. The author identifies distinct features of the subject matter of the crime, such as: the integrity of trees and shrubs, their virginity, and the absence of age restriction criteria for felled trees and shrubs. The author formulates the criteria for attributing certain territories to the crime scene. The author emphasizes that the understanding of deforestation only as separation of a tree from the root leads to a narrowing of the scope of criminal law prohibition, since such actions as damage, uprooting, causing significant damage to the environment remain outside the scope of criminal liability. It is proposed to give a clear explanation of the meaning of the concept of “deforestation” in the note to Article 246 of the Criminal Code of Ukraine. The author emphasizes the critical remarks on the legislator’s expansion of the objective party, namely, the inclusion in the disposition of Part 1 of Article 246 of the Criminal Code of Ukraine, in addition to felling, of such actions as transportation, storage, sale of illegally felled trees or shrubs that caused significant damage. The author establishes that the legislative approach to the formulation of the material elements of a crime which are characterized by the above actions creates a number of problems in the process of qualifying an act. The author provides arguments that it is inexpedient to decriminalize transportation, storage, and sale of illegally felled trees or shrubs which caused significant damage, since such actions do not lose their public danger, especially in the context of the environmental situation complicated by the war. At the same time, the author does not support the view that it is expedient to establish administrative liability for transportation and storage of illegally felled trees and shrubs. It is proposed to differentiate criminal liability in this regard. Transportation, storage, and sale of illegally felled trees or shrubs should be provided for as a criminal offense with a formal composition (Part 1 of Article 246 of the Criminal Code of Ukraine), while excluding transportation and storage of illegally felled trees or shrubs from the disposition of Part 1 of Article 65 of the Code of Administrative Offenses as administratively punishable actions. Liability for illegal felling of trees or shrubs in forests, protective and other forest plantations which caused significant damage should be provided for in Part 2 of Article 246 of the Criminal Code of Ukraine (as a crime with material composition). It is found that the most common motives for this crime are mercenary motives.

Peculiarities of the legislative model of the criminal law prohibition of smuggling

The article is devoted to the study of the peculiarities of the legislative model of criminal prohibition of smuggling. It is stated that the emergence of new and modernization of existing methods of smuggling is due to the correlation of the State’s customs policy in connection with the full-scale invasion of the Russian Federation and the introduction of the legal regime of martial law. The purpose of this article is to provide a systematic analysis of the amendments and additions made to Section VII of the Special Part of the Criminal Code of Ukraine in terms of criminalization of smuggling, to determine their effectiveness and expediency, and to formulate scientifically sound recommendations for improving criminal law regulation of social relations related to smuggling. The author establishes that the main factors which influenced the process of recriminalization of commodity smuggling are: an increase in the number of manifestations of smuggling of goods and their unreliable declaration; a decrease in revenues to the State Budget of Ukraine; stimulation of unfair competition; entry of products of inadequate quality into the domestic market; an increase in the shadow economy in the public sector; criminalization of smuggling of goods in certain EU countries; ineffective application of administrative liability measures. The author analyzes the need to strengthen criminal liability for commodity smuggling at the level of the European Union as a whole. The author elucidates the approaches available in the criminal law doctrine to solving the problems associated with the introduction of criminal liability for commodity smuggling. It is substantiated that in case of any change in the system of current criminal legislation, it is necessary to justify this type of rulemaking, i.e. to assess the admissibility and appropriateness of a criminal law novelty. The author emphasizes that it is inexpedient to distinguish criminal law provisions on smuggling by the type of subject matter. The author concludes that the model of criminal legal prohibition of smuggling chosen by the legislator determines the differentiation of criminal liability, and at the same time is a manifestation of the shortcomings of legislative technique, since it gives rise to the emergence of legislative models of smuggling with different objects of criminal legal protection.

Практика розгляду судами справ про притягнення осіб до адміністративної відповідальності за вчинення домашнього насильства

The article analyses the practice of courts considering cases of bringing persons to administrative liability for committing domestic violence. As social conditions change, so do the forms of violent acts and the preconditions for their commission, as well as the practice of courts considering such cases. Domestic violence is behaviour in which physical and psychological coercion is used to establish and maintain control over a loved one, with whom the perpetrator is usually connected by common life or family ties. It is often a cyclical pattern of behaviour that escalates, endangering the life and emotional well-being of victims. The rights violated by domestic violence include basic fundamental rights protected by international law, such as the right to life and bodily integrity and freedom from torture and other cruel, inhuman or degrading treatment. The article identifies the penalties most often applied to persons brought to justice, including a fine, which is considered to be insufficiently effective because it may have an impact on the victim and because of the small amount of the fine. The problem identified is that the courts do not pay enough attention to clarifying all the circumstances of the case, and the justification for applying the type of penalty for domestic violence is insufficient. The problem of recording cases of domestic violence is equally problematic, as protocols are often drawn up in violation of the requirements of the Code of Administrative Offences. The problem of recognising children as victims in cases of violence committed in their presence remains. It is noted that the establishment of administrative liability for domestic violence is not a sufficiently effective means of combating domestic violence and preventing its recurrence.

The Administrative Liability Model: Under the Patronage of N.G. Salischeva and Years Later

The Administrative Liability Model: Under the Patronage of N.G. Salischeva and Years Later

On Some Problems of Administrative Liability of Legal Entities

On Some Problems of Administrative Liability of Legal Entities

The Administrative Liability for Violation of Laws on the Organization of Provision of State and Municipal Services (Art. 5.63 of the Administrative Offense Code of the Russian Federation)

The Administrative Liability for Violation of Laws on the Organization of Provision of State and Municipal Services (Art. 5.63 of the Administrative Offense Code of the Russian Federation)

Legal liability of medical personnel and health workers who commit negligence during medical procedures (Normative Study After the Enactment of Law Number 17 of 2023 Concerning Health)

Medical personnel and health workers are part of health human resources who are basically tasked with providing health services to service recipients, in this case patients and/or providing the necessary medical measures. Medical personnel and health workers who commit negligence when carrying out their duties legally can be subject to legal liability. Since the enactment of Law Number 17 of 2023 concerning Health, there have been several important aspects of health law that have changed, one of which is related to legal liability. For this reason, it is necessary to conduct an assessment, especially about legal liability for medical personnel and health workers if they commit negligence when performing medical procedures. The type of research carried out is normative juridical research. The approach taken is a statutory approach and is descriptive analysis. The resources used for secondary data are by processing data from primary legal materials, secondary legal materials and tertiary legal materials. The data collection tool used is document study (library research) and analyzed by qualitative analysis. Based on the results of the study, it is known that the duties and functions of medical personnel and health workers in carrying out medical actions on patients are mainly to provide health services to patients in the form of promotive, preventive, curative, rehabilitative, and/or palliative. Then it is known that the legal responsibility of medical personnel and health workers when committing negligence after the enactment of Law Number 17 of 2023 concerning Health is divided into 3 (three) forms, namely administrative liability, namely the temporary deactivation of STR; and/or recommendations for revocation of SIP, civil liability in the form of compensation and criminal liability in the form of imprisonment and fines.

Administrative liability for violations of civil firearms circulation rules as a component of state control

The article provides an analysis of the compositions of administrative offenses in the sphere of circulation of civilian firearms. During the research, a number of problematic aspects were identified that could negatively affect the application of the relevant provisions of the Code of Ukraine on Administrative Offenses, and a series of proposals were put forward to address these gaps. In particular, the publication emphasizes the need to differentiate in Article 85 of the Code of Administrative Offenses the administrative responsibility for violations of hunting rules depending on the type of animals that have been hunted or attempted to be hunted by the subject of the respective offense, taking into account the rates for calculating the compensation for damages caused as a result of violations of legislation in the field of hunting and game management (except for species listed in the Red Book of Ukraine). The paper also highlights the expediency of differentiation of liability in the aforementioned article of the Law for Fisheries with the use of firearms based on the criterion of causing or not causing damage to ichthyofauna by relevant actions. Furthermore, the author proposes to amend Article 174 of the Code of Administrative Offenses regarding the use of firearms in the following version: ‘Shooting with firearms in an uncleared area of a populated area, in an uncleared area outside a populated area, or in a cleared area in violation of the established procedure’ and to differentiate responsibility in the specified norm depending on the place of commission of the administrative offense as a feature of the objective side. Moreover, with the aim of improving and enhancing the effectiveness of the application of administrative-legal prescriptions, the scientific article focuses on the controversial aspects of the object, objective side, and subject of the composition of the administrative offense envisaged by Article 190 of the Code of Administrative Offenses; normative formulation of the title and disposition of Article 192 of the Code of Administrative Offenses; the circle of persons constituting the subjective composition of administrative offenses envisaged in Articles 191–195 of the Code of Administrative Offenses; sanctions for committing administrative offenses provided for in Parts 1, 2, 4 of Article 85 and Articles 174, 190–195 of the Code of Administrative Offenses.

ОБОСНОВАНИЕ ПРИЗНАКОВ ПРАВОНАРУШЕНИЯ, ПРЕДУСМОТРЕННОГО СТ. 6.1.1 КОАП РФ, В СПЕКТРЕ ЭЛЕМЕНТОВ МЕЖЛИЧНОСТНОГО СОЦИАЛЬНОГО КОНФЛИКТА

The article analyzes the content of beatings as a social and legal conflict, on the basis of which the signs inherent in administrative beatings are highlighted, justifying the conclusion that the author’s definition of beatings involves administrative liability. In addition, a list of characteristics that complement these characteristics has been defined. The author focuses on the industry priority of legal norms providing for administrative and criminal liability for assault. Statistical data indicates the relevance of the research topic, according to which the composition of an administrative offense provid-ing for liability for battery is one of the most frequently committed administrative offenses.

ADMINISTRATIVE ARREST AS A JUDICIAL ADMINISTRATIVE PUNISHMENT

The purpose of the research. The article analyzes the concept of understanding administrative arrest as a type of judicial administrative punishment through the prism of the historical experience of the national model of public force. The purpose of the research is to analyze the development of legislation on administrative liability in relation to administrative arrest in retrospect in order to establish criteria for classifying administrative arrest as judicial administrative punishments and prospects for the application of this type of punishment. Results. As a result of the research, the authors come to the conclusion that the axiomatic nature of the modern perception of administrative arrest as a judicial administrative punishment is based on a long and logical path of development of legislation on administrative liability and the experience of the legislator's search for the optimal model of public force. The authors note that the basis for classifying administrative arrest as judicial administrative punishments is the criterion of limiting the personal constitutional rights of a person subjected to administrative punishment. Despite the discussion in the scientific community regarding the expediency of maintaining administrative arrest, the authors note the objective need of the legal system for this type of administrative punishment for the effective implementation of the administrative and protective function of the state, provided that the exceptional nature of its appointment is preserved.

System of measures for administrative liability for violations in the field of intellectual property: today and prospects for development

System of measures for administrative liability for violations in the field of intellectual property: today and prospects for development

Administrative liability for violation of legislation in the field of volunteering

Administrative liability for violation of legislation in the field of volunteering

Влияние специальных правил юридической техники на качество конструирования санкций административно-деликтных норм

The quality of laws establishing sanctions and administrative tort norms is directly related to their developers’ compliance with general and special rules for their preparation. This article describes the special rules of legal technology contained in the Code of Administrative Offenses of the Russian Federation and the relevant laws of the constituent entities of the Russian Federation, the Concept of the new Code of Administrative Offenses of the Russian Federation, its draft and reflected in the positions of modern lawyers, used in constructing sanctions of the rules of law on administrative liability.

Criteria for Distinguishing Between Advertising and Organic Integration

Monitoring and supervision of compliance with advertising legislation, including requirements related to the definition of certain information as advertising, is attributed to the powers of the Federal Antimonopoly Service. The provisions of the current legislation on advertising don't apply to information organically integrated into works of culture, science, and art, which is an opportunity to avoid administrative liability in case of detection of signs of violation of advertising legislation. In this case, the key question becomes when information is considered organically integrated and how to distinguish it from advertising. The authors propose and justify criteria for distinguishing advertising and information messages, taking into account the long-term practice of the FAS of Russia and the courts.

Postulat posiłkowego stosowania zasad prawa karnego a odpowiedzialność z tytułu administracyjnych kar pieniężnych

The article focuses on the problem of liability for administrative fines, taking into account elements of a subjectivising nature of administrative liability to demonstrate the possibility of subsidiary application of criminal law provisions by public administration bodies. Through the analysis of the case law of the Supreme Administrative Court, selected Regional Administrative Courts, the Constitutional Tribunal, as well as the European Court of Human Rights, it is shown that the problem of measuring and imposing administrative fines on the basis of the provisions of substantive administrative law and Section IVa of the Code of Administrative Procedure requires a much broader analysis than any conducted thus far. Due to the legislator’s failure to guarantee the correct scope of legal protection that would include demonstrating the circumstances that are also of a subjective nature, obliged entities have been deprived of numerous legal guarantees provided not only in Article 42(2) of the Constitution of the Republic of Poland but also in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The analysis of the nature of administrative fines proves that the current regulations of Section IVa of the Code of Administrative Procedure require significant reform, in particular, to guarantee the absence of arbitrary imposition and execution of administrative sanctionsby public administration bodies. Verifying the judgments from the point of view of taking into account the subsidiary application of the provisions of criminal law has made it possible to present a discussion on the nature of administrative liability, which is first and foremost of significance in terms of implementing the obligations of the State Party to the ECHR within the framework of taking into account subjective circumstances, but also in terms of the application of the ne bis in idem principle in the situation of concurrence of criminal and administrative liability. With this in mind, a de lege ferenda postulate is to amend the provisions of Section IVa of the Code of Administrative Procedure by including in its scope additional legal guarantees of obliged entities while taking into account the principle of legalism in its broadest sense.

Субъект административной ответственности за совершение правонарушения в сфере эксплуатации транспортного средства с элементами искусственного интеллекта: дискуссионные аспекты

The paper explores some of the discussion points regarding the determination of the subject of administrative liability for committing offenses in the field of artificial intelligence-equipped vehicle operation. It is noted that legal regulation in the field of transportation safety, taking into account the emergence of electric vehicles, is actively evolving. However, the regulation of administrative liability for offenses in the field of vehicle operation with elements of artificial intelligence has not yet been reflected in current legislation. Based on the analysis conducted, the author draws several conclusions. Particularly, it is determined that there is a pressing need for regulating public relations considering the use of technologies with elements of artificial intelligence, especially in public legal relations, including administrative and criminal law. Presently, there are no specific provisions in modern administrative law dedicated to formulating offenses with regard to the use (operation) of technologies, including vehicles with elements of artificial intelligence. However, the author believes that this gap will be addressed by the legislator in the near future. Analysis of scientific literature led to the conclusion that the subject of administrative liability in this field should be differentiated based on the future composition of administrative offenses proposed by the legislator, as well as depending on the factual circumstances.

Уголовно-правовая охрана обработки персональных данных в сфере спорта: постановка вопроса

The author raises the question of the prevalence of violations committed during the illegal processing of personal data in the field of sports. Among the reasons for problems of law enforcement is the uncertainty and incompleteness of the provisions of Art. 13.11 The Code of Administrative Offenses of the Russian Federation, along with the gaps in the Criminal Code of the Russian Federation, in terms of strengthening the counteraction to illegal manifestations through the consistent criminalization of violations of the legislation of the Russian Federation in the field of personal data, administrative liability for the commission of which is provided for by Part. 1, 2 tbsp. 13.11 Code of Administrative Offenses of the Russian Federation.

Individual issues of legal regulation of administrative liability for offenses that undermine the established order of governance

Individual issues of legal regulation of administrative liability for offenses that undermine the established order of governance

Актуальные проблемы привлечения к административной ответственности за нарушение законодательных требований к распространению интернет-рекламы

Amendments to administrative laws that stipulate the liability for violation of requirements for distribution of Internet advertising entered into force on September 1, 2023. These requirements stipulate obligatory labeling of advertising materials and provision of data to the Unified Internet Advertising Register. The presented article analyzes these administrative law novelties. The author highlights that labeling of Internet advertising is a complex and multi-aspect process, where distribution of illegal conduct is unacceptable. In this context, introduction of the administrative liability for violation of legal requirements for distribution of Internet advertising is viewed as timely and justified. Based on the conducted research, the author brings forward a proposal for supplementing sanctions of Part 15-17, Art. 14.3 of the Administrative Offense Code of the Russian Federation with punishment in the form of a warning for comprehensive assurance of adequacy of legal consequences for the above named offenses taking into account special aspects of functioning of advertising distributors and providers.

Organization and Implementation of Public Tax Control in Russia: Modern Problems and Ways to Solve Them

Annotation. This scientific research addresses the issues of the functioning and development of public tax control, which is the most important component in the system of guarantees of both the system of constitutional principles (especially democracy and the participation of Russian citizens in the functioning of the public administration system), and the system of rights, freedoms, legitimate interests of individuals and legal entities in Russia. The necessity of incorporating the institution of public tax control into the Russian legal system is substantiated. The article examines various approaches to defining the concept of public tax control and substantiates its author's definition. The work analyzes modern problems that hinder the development of public tax control in Russia, including: the lack of enshrinement of this institution of civil society in the Constitution; not developing specific forms, methods and types of public tax control measures in the Russian scientific legal doctrine; the lack of real powers among subjects of public control to exercise effective public tax control; lack of specialized subjects of public control in this area; poor use of modern information and communication technologies by these entities in their activities; insufficient funding for their activities from state and municipal budgets; weak use of foreign positive experience in organizing and functioning of control of civil society in this area; the absence of specific measures of responsibility for counteracting the legitimate activities of representatives of subjects of public control in criminal and administrative legislation. The article develops and substantiates a system of measures to resolve these problems by: incorporating public tax control into the Constitution of Russia; its details in Russian legislation; expanding the powers of subjects of public control; creation of special entities in the field of public tax control, independent of tax authorities; using in their activities positive foreign experience in exercising public control in the field of tax legal relations; developing a system of federal programs to develop the organizational, technical and financial base of subjects of public control, increasing their use of modern digital technologies; tightening measures of criminal and administrative liability for opposing the legitimate activities of subjects of public tax control.