Administrative Punishments: Theoretical and Legal Characteristics and Some Problems of Their Infliction

The paper examines some aspects of theoretical views on administrative punishment. The author analyzes the concept of administrative punishment as a measure of responsibility for an administrative offense, its essence and objectives. The study highlights a number of topical problems in the field of legal regulation of the system of administrative punishments that cause difficulties in the correct choice and appointment of administrative punishments. Attention is drawn to the lack of a unified approach for the legislator to establish a system of administrative penalties in terms of their alternative or non-alternative nature. It is shown that some sanctions are incompatible with the nature of the offense; there is a significant gap between the lower and upper limits of penalties in alternative sanctions, a significant difference exists in the sanctions applied to different subjects of the same offense. As a result, the commission of a more socially dangerous act in practice entails infliction of a less severe punishment, which does not meet the goals of prevention. It is noted that in some cases, when deciding on the infliction of an administrative penalty, jurisdictional authorities do not take into account mitigating or aggravating circumstances. Some proposals are made to improve the current legislation on administrative offenses. In particular, the author suggests that it is necessary to correlate all administrative offenses with each other according to the degree of public danger and, on this basis, introduce a system of punishment for administrative offences. It is also proposed to toughen the liability in relation to individuals, since the amount of the fine in relation to individuals and legal entities in some cases differs 50 times. At the same time, the author substantiates the necessity of involving the population in the development of legislative initiatives in this area.

Some directions of improvement of ways of interpretation of procedural administrative-tort legal norms of the customs legislation

Having studied the peculiarities of interpretation of administrative-tort provisions of customs legislation establishing the procedure for proceedings on violations of customs rules, the author, in particular, expresses the opinion that in order to ensure the legality and validity of the decision to impose administrative penalties through the correct determination of the circumstances of the case and the applicable law as well as through the choice of a fair type and amount of administrative penalty – the customs legislation on the right to explain the alleged offense and comment on the case should be interpreted in a way that the person prosecuted should be given sufficient time and procedural opportunities to express their position on the legal substantiation of the allegation that they committed an offense and on the proposed penalty, as well as to provide evidence on the circumstances of the case. Also, the author substantiates that the model of termination of proceedings in customs rules violation case on the basis of a compromise, introduced in the customs legislation, needs to be radically improved, because it is built so that this tool of customs administration does not correspond to its nature and purpose since under the current customs law this model demands unconditional admission of guilt and imposition of possible type and amount of administrative penalty, which is unchangeable according to negotiated mutual concessions. Moreover, the motivation of offenders to conclude amicable agreements with customs authorities is limited to avoiding stricter penalties for repeated offenses, which is incompatible with the principle of inevitability of liability and may devalue the progressive increase in penalties. In addition, the author proposes ways to expand the interpretation of customs law on the temporary seizure of goods, vehicles and documents to maximize the protection of property rights of enterprises, which in light of the circumstances may be unreasonable and disproportionate.

Directions of improving legal responsibility for committing administrative offenses related to corruption.

An attempt was made to improve the relationship and consequences of administrative liability for corruption-related offenses and further public service, other employment, persons authorized to perform the functions of state and local self-government, and persons equated to them. Based on the analysis of the provisions of current legislation, judicial practice of its application, official interpretation of the law, attention is paid to legal uncertainty, elements of subjectivity in the appointment of courts such administrative penalties as deprivation of the right to hold certain positions or engage in certain activities. sanctions of articles of the Special part of the Code of Ukraine about administrative offenses. It is proved that the application of such an administrative penalty as deprivation of the right to hold certain positions or engage in certain activities should take into account the nature and type of the relevant offense related to corruption, proposed its own basis for their division into such types. Namely, among all types of administrative offenses related to corruption, there are those related to the performance of official duties and those related to the performance of such duties are not directly related. With this in mind, it is stated that the responsibility for their commission should not be the same because of their different social harm and danger. Emphasis is placed on the legislator's unequal approach to the consequences of bringing individuals to administrative responsibility for corruption-related offenses in the form of termination of public service or other employment. The author's approach to the solution of the specified problem is offered, namely – termination of performance of official or other powers as a result of bringing to administrative responsibility for the offenses connected with corruption, should be applied only for commission of those offenses which are directly connected with performance by the professional duties.

Optimization of justice: administrative offense cases in Russia

The article is devoted to the study of the problems of legal regulation of jurisdiction and jurisdiction of cases of administrative offenses in the light of the forthcoming reform of administrative tort legislation. The author shows how the issues of optimizing jurisdiction and jurisdiction in such cases are related to solving the problem of ineffectiveness in the administration of justice in the sphere of administrative-tort relations and restoring the systemic character of legislative regulation of administrative responsibility, establishing clear criteria for the distribution of cases of administrative offenses between judicial and non-judicial bodies, with one hand, and within individual links of the judicial system — on the other. Particular attention is paid to substantiating the need to establish a predominantly out-of-court procedure for considering cases of administrative offenses. At the same time, it is emphasized that the optimization of the administrative and jurisdictional activities of the courts should be associated with such factors as the social significance and direction of the unlawful act, as well as the severity of administrative punishment. In this regard, the appointment of administrative punishments in the form of a warning, deprivation of special rights and administrative expulsion in the form of an independent departure from the Russian Federation is proposed to be attributed to the exclusive competence of the executive authorities.With regard to an administrative fine, the author concludes that only in cases where the size of the fine is comparable to a more severe administrative penalty or the amount of increased fines established for crimes in similar areas of activity, its imposition should be attributed to the exclusive competence of the court.In certain cases, it is also proposed to introduce a simplified procedure for considering cases in the courts on the imposition of an administrative fine.

THE COURT REFUSES TO GRANT A CERTIFICATION ORDER IN THE BREADCARTEL CLASS ACTION CASES: A CLOSER EXAMINATION OF THE WESTERN CAPE JUDGMENT The Trustees for the time being of the Children’s Resource Centre Trust v Pioneer Foods (Pty) and Imraahn Ismail Muka

In the above cases, which came before the Western Cape High Court for hearing on both 23 and 25 November 2010, the judge, Francois Van Zyl, AJ dismissed the two applications for leave to institute the class actions on behalf of the applicants against the respondent bread-manufacturing companies (ie, Pioneer Foods (Pty) Ltd, Tiger Consumer Brands Limited and Premier Foods Limited)who, together with Foodcorp (Pty) Ltd, enjoy between 50% and 60% of the domestic bread market in South Africa. The judge promised to give reasons for his decision subsequent to his ruling on 26 November 2010 and, indeed, on 07 April 2011, he provided detailed reasons for his decision in terms of Rule 49(1)(c) of the Rules of the High Court. Material facts as accepted by the Court and which are relevant for the purposes of this case note are as follows: Both cases emanated from a complaint raised with the Competition Commission following an allegation of a bread cartel operated by the Respondent companies in the Western Cape in December 2006. After a preliminary investigation, the Commission initiated a complaint against the three respondents in the above applications. One of the respondent companies, Premier, applied for leniency and disclosed to the Commission that, together with Pioneer and Tiger, it was part of a bread cartel in the Western Cape which fixed the selling price of bread and other trading conditions. Following this disclosure, Premier was granted corporate leniency by the Commission and, on 14 February 2007, an agreement was concluded between Premier and the Commission in terms of which Premier agreed to assist the Commission in its investigations and subsequent prosecution of the other respondents before the competition Tribunal. On the same day that the corporate-leniency agreement was concluded with Premier, the Commission referred the complaint made against Tiger and Pioneer in the Western Cape to the Competition Tribunal. Following the referral, Tiger negotiated a consent agreement with the Commission, in terms of which it admitted that it enteredinto an agreement with Premier and Pioneer during December 2006 regarding bread prices and discounts to independent distributors in the Western Cape which amounted to a contravention of the provisions of the Competition Act (89 of 1998). On 27 November 2007, the Competition Tribunal made a consent order against Tiger in terms of section 49D of the Competition Act and levied against it an agreed administrative penalty of approximately R98 million. With regard to the third respondent company, Pioneer, complaints against it were subsequently heard by the Competition Tribunal and, on 03 February 2010, it was found that, together with Premier and Tiger, it was part of a bread cartel in December 2006 in the Western Cape in contravention of the provisions of the Competition Act. Taking into account other contraventions of the Competition Act committed by the company in other parts of the country, Pioneer wassubsequently ordered to pay an administrative penalty of approximately R195 million. In the final analysis, the facts established that bread-cartel operations took place during December 2006 in the Western Cape. It was further established that the three respondent companies were part of that bread cartel in contravention of the provisions of the Competition Act (ie, Premier applied forand was granted corporate leniency, Tiger negotiated a consent agreement which was made a consent order by the Competition Tribunal in terms of the Competition Act and Pioneer was found by the Tribunal to have been in contravention of the Competition Act and an administrative penalty was imposed upon it). It was in the context of the above circumstances that the applicants brought applications for class-action certification against the three respondents in the Western Cape High Court for the compensation of theconsumers and distributors who were detrimentally affected by the conduct of the respondent companies in contravention of the Competition Act. The AJ’s primary reasons for dismissing the applications included, firstly, the fact that while it is important in cases such as this to clearly identify a class for the purposes of the “class action” on the “opt-out” basis, the applicants failed to identify the “class” for the purposes of the application.

Administrative prejudice in cases of petty theft (the Article 7.27 of the Code of the Russian Federation on Administrative Offenses and the Article 158.1 of the Criminal Code of the Russian Federation): how the big data of judicial acts reflect humanization and quality of justice

The subject of this article is the public relations arising in the context of committing petty theft, as well as research means and methods for assessing the optimization of legislation and law enforcement. Due to the specific structure of administrative prejudice, the article presents the methodology and results of the analysis big data of judicial acts in cases of petty theft (the Code of the Russian Federation on Administrative Offenses and the Article 158.1 of the Criminal Code of the Russian Federation) for assessing the quality of justice and optimization of legal regulation. The research is founded on the original interdisciplinary methodology, which contains the indicator approach along with the set of legal and computer aided techniques, including intellectual text and data mining, as well as machine learning. It is demonstrated that the judgments of conviction do not have considerable differences in the semantics and logical complexity of decision-making in comparison with the ruling on imposition of administrative penalty; the logic of making decisions on the choice of administrative or criminal penalty for petty theft varies, whereby the choice of administrative penalty is more differentiated. Despite the identity of acts related to administrative prejudice, their regulation by different laws leads to different enforcement results. Administrative-tort regulation is more optimal. Administrative responsibility for petty theft is rather humane for the society overall, although for victims, criminal responsibility appears to be more humane. Having analyzed the array of information, the author extracts certain knowledge on the administrative-tort and criminological characteristics of petty theft alongside peculiarities of court proceeding and imposition of penalties, as well as concludes on applicability of the developed methodology towards analyzing big data of case law on administrative and criminal offenses.

THE ADMINISTRATIVE LIABILITY UNDER ART. 24, PAR. 2 OF THE ADMINISTRATIVE VIOLATIONS AND SANCTIONS ACT

The article examines the administrative penal liability of employees and managers of enterprises, institutions and organizations under article 24, par. 2 of Administrative Violations and Sanctions Act (AVSA). The general character of the responsibility and the relation between the institutes of the criminal and administrative law in connection with the application of art. 24, par. 2 of the law are discussed. The paper analyzes the preconditions of the responsibility under art. 24, par. 2, as well as admission and abetment as forms of responsibility of the heads of enterprises, institutions and organizations. It is concluded that the setting of additional requirements to the responsibility of the heads of organizations, as well as its direct connection with the guilty administrative violation by the respective employee, complicates the implementation of the administrative penalty and withdraws the administrative bodies from the application of article 24, par. 2 of the Administrative Violations and Sanctions Act.

Insignificance in Committing Administrative Offences Provided by the Article 130 of the Code of Ukraine on Administrative Offences

The judicial practice of exemption of offenders from administrative responsibility due to insignificance provided by the Article 130 of the Code of Ukraine on administrative offences has been analyzed. The problems of interpretation of the evaluative term «insignificance» as a basis for exemption from administrative responsibility under Article 130 of the Code of Ukraine on administrative offences has been disclosed. The classification of the most frequent cases of drunk driving into the insignificant administrative offence has been reviewed in practice. In particular, «low index of blood alcohol content», «presence of mitigating circumstances», «positive person’s behavior after committing offence», «onset of intoxication due to the use of medicines», «no seizure of a vehicle by police officers». The delimitation of illegal behavior of a person that contains all indications of administrative offence, administrative offences with a formal composition, circumstances that mitigate responsibility, and insignificant administrative offence has been conducted. It has been indicated that person’s behavior after committed offence and circumstances that mitigate responsibility for administrative offence should not be taken into consideration for acknowledgment of its insignificance. It is identified that contrition of a guilty person, committing an offence for the first time or commitment by a person that has not been prosecuted before, difficult financial situation, compensation for the caused damage and existence of dependents, as 10 years ago continue to remain the most common basis for exemption of offenders from administrative responsibility due to insignificance. An extension term of up to one year of imposition of an administrative penalty for committing an offence provided by the Article 130 of the Code of Ukraine on administrative offences has been positively assessed.