Questions of bringing to administrative responsibility in Russia
The process of decodification of legislation about administrative offenses. The guilt of collective subjects, legal persons. The particularity of administrative responsibility for tax offenses. The problem of the legal representative of the legal person.
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Questions of bringing to administrative responsibility in Russia
The process of decodification of legislation about administrative offenses is the major problem, destroying the uniformity of the institute of administrative responsibility. administrative responsibility legal tax
The process of development of the legislation about administrative offenses in our country can be divided into four periods.
The first period (conditionally is possible to specify from 1917 till 1985) is valued as chaotic, disembodied by virtue that administrative responsibility could be fixed by the great amount of subjects - bodies of state management and local bodies of state authorities. The great number of union and republican legislative and governmental acts (about 500) brought to mess and in coordination in law enforcement activity. All this has become the reason of stating the question about creation of the uniform legal field of administrative offenses.
Scientists, dealing with administrative responsibility, specify the first step at direction of the first consolidation of the legislation about administrative offenses with the Decree of the Presidium of the Supreme Soviet of the USSR from June 21, 1961 "About further restriction of application of fines, imposed in administrative order". As to procedures, the significant importance occupied the republican positions about administrative commissions at executive committees of local councils, which rules had to follow not only exactly these commissions, but also other state bodies and officials, authorized to settle cases about administrative m offenses. But the legislation about administrative responsibility was not codified that obstructed the realization of administrative-jurisdiction activity.
The following step to systematization of the norms about administrative responsibility were the adopted by the Supreme Soviet of the USSR in 1980 bases of legislation of the Union of SSR and Union republics about administrative offenses .
Adoption of the bases certified to the fact that the lawmaker abandoned entering the Code of criminal offenses  and followed the way of codification of norms of administrative law on separate institutes and associations in one act both material, and procedural norms. The bases contained general lines of delimitation of competencies of the Union of SSR and Union of republics in the field of law-making, was for the first time there was given the official definition of the administrative offense, and there was allowed the possibility of "flexible reaction" on administrative offenses, and there were described measures on increasing the status of the administrative commissions at executive committees of the local councils .
The second period of formation of administrative legislation is connected with adoption (June 20, 1984) and coming in force (January 1, 1985) of the first in the history of our country of the Code of RSFSR about administrative offenses. The Code of RSFSR about administrative offenses had many values: it accumulated the norms about administrative responsibility, unified the process of bringing to administrative responsibility and performance of administrative recovery and others. However the period of its action turned out to be short: 1990-s are known as the years of Perestroika which brought about to creation of the new state.
During the third, post-perestroika period, there existed dualism of norms of administrative responsibility. On the one hand, 291 compositions of administrative offenses were kept in the Code of RSFSR about administrative offenses (from which 213 practically were not applied), but on the other - 285 compositions of administrative offenses were kept outside the Code in 23 other statutory acts. Over 40 types of various positions, instructions, and regulations described the order of bringing to administrative responsibility of legal persons.
The process of decodification of legislation about administrative offenses was promoted with intensive law making process of the subjects of the Russian Federation .
Finally, the fourth period came with passing of the new Code of the Russian Federation about administrative offenses (from 2002 till present). The important achievement of the above mentioned Code has become fixed on the federal level its monopoly on the question of determination of administrative responsibility: in accordance with Part 1 Article 1.1 the Code of RSFSR about administrative offenses the legislation about administrative offenses consists of the Code and laws of the subjects of the Russian Federation about administrative offenses adopted according to it.
Article 2 of the Federal Law from December 30, 2001 N 196-FZ "About coming into force of the Code of the Russian Federation about administrative offenses" contained the list of 137 statutory legal acts, which as a whole or in part have lost force in connection with coming in force of the Code of RSFSR about administrative offenses on July 1, 2002.
The above mentioned Federal law has allowed to save in chapter 16 of the Tax Code of the Russian Federation 13 articles, containing compositions of administrative offenses (Articles 116 - 120, 122, 123, 125, 126, 128, 129, 129.1, 129.2). Herewith the Code of RSFSR about administrative offenses contains the number of articles, providing administrative responsibility for the same offenses (Articles 15.3 - 15.8, Articles 15.11).
It so happened that responsibility for these delicts is provided simultaneously in two Codes. The delimitation was organized only on types of subjects. If these delicts are made by the citizens and organizations (legal persons), there should be used measures of tax responsibility, installed by Tax Code of the Russian Federation. Measures of administrative responsibility in accordance with the Code of RSFSR about administrative offenses are applied for the same offenses in respect of officials of organizations, which are not the subjects of tax responsibility. Such division of norms between the two Codes, based solely on different subject composition is unconvincing and, certainly, needs correction. The practice of the courts of arbitration can be an example of it.
Thus, the Federal court of arbitration of Volga-Vyatsk district has left without change the decision of the Court of Arbitration of the Kostroma region by which the Society has been drawn to responsibility on item 1 Article 116 of the Tax Code of the RF for violation of the term of setting tax account, provided by item 3 Article 83 of the Tax Code of the RF. The Society having applied to the court of cassation instance applied to cancel the judicial act, referring to the fact that on the ground of positions of Article 1.1 the Code of RSFSR about administrative offenses it should be brought to administrative responsibility in accordance with norms of the Code of RSFSR about administrative offenses instead of Tax Code of the RF. And the court specified that the Society was registered on April 7, 2003, but statement about setting on tax account in the 10-days term established by legislation has not been given. In this case to responsibility for breaking terms of setting on tax account there was brought the legal person that does not exclude bringing of the official of the Society to responsibility for an administrative offense, but according to Article 15.3 the Code of RSFSR about administrative offenses. Thereby, the Court of arbitration of the Kostroma region has made the conclusion about legality of bringing of the Society to tax responsibility in order of article 116 of the Tax Code of the RF.
In connection with stated, it is reasonable to carry some articles of Tax Code of the Russian Federation (Articles 116 - 120, 122, 123, 125, 126, 128 - 129.2) to chapter 15 of the Code of the Russian Federation about administrative offenses.
The similar situation is with the Budgetary Code of the Russian Federation (see the text of the BC of the RF). More than 10 types of infringements of the budgetary legislation provided by Articles 293, 295 - 303, 305, 306 of the BC of the RF, is not contained in the Code of the Russian Federation about administrative offenses that will paralyze their application. It is supposed to exclude "budgetary" offenses from the BC of the RF and to provide responsibility for them in the Code of the Russian Federation about administrative offenses, since they are the variety of administrative misdemeanor.
The practice of courts of arbitration shows that in the Federal Law No. 196-FZ in the list there is not specified the number of the federal laws, which contain responsibility for administrative offenses. Norms about administrative responsibility, kept in the federal laws outside the Code of the Russian Federation about administrative offenses, are applied not in accordance with order of proceeding of cases about administrative offenses, installed by section IV the Code of the Russian Federation about administrative offenses. So, the number of administrative-jurisdiction bodies , calling to responsibility according to above mentioned federal law, considers that in this instance there must be applied statute of limitations of bringing to responsibility, installed by Article 113 of Tax Code of the RF, instead of Article 4.5 of the Code of the Russian Federation about administrative offenses.
Such trend is kept in arbitration-judicial practical as well. For instance, the Federal Court of Arbitration of the Far East district has cancelled the decision of the court of first instance, according to which the individual businessman was enforced on him in amount of 10000 rubles for violation of the term of registration in the territorial body of the Pension fund of the RF on the ground of item 1 article 27 of the Federal Law "About obligatory pension insurance in the Russian Federation". Cancelling the decision of the court of the first location, the court of cassation instance has specified that in accordance with Article 113 of the Tax Code of the RF the person can not be brought to responsibility for completion of the tax offense if three years expired since the day of its completion. The state registration of the businessman is realized on January 17, 2002, the 30-day term for registration in territorial bodies of the insurer expired on February 18, 2002 (since the last day of registration was February 16, 2002, Saturday). Consequently, the decision about bringing to liability could not be made before February 18, 2005. Actually it is made on July 27, 2005 that is with violation of the installed term.
We suppose that it is impossible to speak of separate tax, pension, social, reserve, medical etc. processes of bringing to administrative liability. The tax legal relations, relations, forming in the sphere of recovering insurance dues on obligatory pension insurance or social insurance against accidents at manufacture and professional diseases, executive manufacture and others. Pertain to variety of administrative legal relations, since they are formed in the sphere of exactly publicly-legal relations. Thereby, responsibility for violation of the above mentioned legislation pertains to administrative liability and its regulation outside the Code of the Russian Federation about administrative offenses undermines the uniformity of the institute of administrative liability.
At the same time we should note that procedural norms have been stipulated in the Tax Code of the RF. How should they be valued and classified? The answer is classical, long ago already became the dominant opinion in the administrative law . Administrative-procedural law as the branch in any event continues to serve the whole law enforcement activity of public bodies of executive authorities. The administrative process is the regulated by the law order of settlement of individual cases in the sphere of state management of public bodies of executive authorities of the Russian Federation and its subjects, and in provided events - other authorized bodies. Parallel existence of the two administrative productions destroys the institute of administrative liability and breaks the unity of administrative-jurisdiction process. The Tax Code of the RF is the important codified source, which has played historical role in 1990s, but at present the time has come for unification of the procedure of attraction to administrative liability in one act - the Code of the Russian Federation about administrative offenses .
The particularity of administrative responsibility for tax offenses.
Proceeding from the working Russian legislation, it is possible to select three approaches at bringing to responsibility for tax offenses.
1. Application of responsibility to citizens, organizations, officials is made both on the ground of norms of Tax Code of the RF and norms of the Code of the Russian Federation about administrative offenses.
2. Dominating of positions of TC of the RF about bringing to responsibility for tax offenses on positions of the Code of the Russian Federation about administrative offenses, providing administrative responsibility for the same offenses. According to Articles 1 and 2 of the TC of the RF relations, arising in the process of bringing to responsibility for completion of the tax offense, are regulated by legislation about taxes and collections, which on the federal level consists of the Tax Code of the RF and the federal laws passed according to it and the Code of the Russian Federation about administrative offenses does not pertain to them.
3. On the contrary they confirm that norms of the Code of the Russian Federation about administrative offenses have priority importance on norms of Tax Code of the RF, since the Code of the Russian Federation about administrative offenses came into force later. This approach corresponds to the legal concept. Moreover, norms of Tax Code of the RF, installing responsibility for tax offenses and procedure of its purpose, in general can not be taken, since it contradicts Article 1.1 the Code of the Russian Federation about administrative offenses.
For law enforcement activity it is necessary to work out the united approach at bringing of legal persons to administrative responsibility for tax offenses, which should be considered in indissoluble relationship with the question about the legal nature of responsibility for completion of tax offenses. At present there exist two opposite standpoints on the given question.
According to the first stand point tax liability is the part of financial liability as an independent type of legal liability . The approach is considered rather disputable, not having sufficient legal arguments.
According to the other standpoint tax liability is considered not as an independent type of legal liability, but as the variety of administrative liability.
Though debates on the given question are not yet finished, we consider the second position, according to which violation of legislation about taxes and collections (unless they keep features of the criminal crime) pertains to administrative liability, more convincing by virtue of the following circumstances.
1. The new the Code of the Russian Federation about administrative offenses with coming into force from July 1, 2002 has become the single law on federal level, regulating all questions of administrative liability. However the Tax Code of the RF comes out of the general rule though the Tax Code of the RF (chapter 16) and the Code of the Russian Federation about administrative offenses (chapter 15, Aricles 15.3 -15.9, 15.11) contain the coinciding compositions, formulating responsibility for violation of the legislation about taxes and collections. But in practice at completion of one and the same offence according to Article 10 of the Tax Code of the RF the organization is brought to liability according to the rules of the Tax Code of the RF, but its chief (official) - in the order, installed by the Code of the Russian Federation about administrative offenses. Such parallelism is extremely harmful, it breaks the uniformity of the administrative procedures.
2. The tax offense (or offense in the field of finance, taxes and collections) possesses all features of administrative offense (violation, culpability, punishment, the subject infringes the stated order of public relations). The notions of offenses according to Article 2.1 of the Code of the Russian Federation about administrative offenses and according to Article 106 of Tax Code of the RF are practically identical, they differ only by references to the codifying act.
III. The blame of collective subjects (legal persons).
The most disputes in printed editions concerning legal liability causes the determination of the blame of collective subjects of right, first of all -of organizations. Obviously, interpretation of the blame as psychological relation to the deed and its consequence is not suitable here since the organization possess neither psyche, nor will, and consciousness. The blame of the legal person is the basic element, which can be considered in three directions: 1) existing scientific concepts; 2) legislative fixing and commentary of the Code of the Russian Federation about administrative offenses; 3) judicial practice.
The analysis of the scientific researches on the given problem allows to select four scientific concepts of the blame of the legal person :
- subjective ("psychological") direction;
- "behavioral" concept;
- behavioral-psychological theory of the blame;
- the concept of "social" blame (liability of legal persons for blame of the worker).
Subjective ("psychological") direction
The dual name of this direction is determined by the fact that in the civil law there exists the "psychological" approach to determination of the blame of the legal persons, similar to subjective direction in the administrative law. The supporters of the given approach determine the blame of the legal persons through the blame of their group, e officials. The blame is considered as the psychological category, as attitude of the organization on behalf of its representatives (the workers, administration, officials and etc.) to the illegal deed committed by the given organization .
The given direction has found its expression in the Tax Code of the RF, in which as the representatives of the subjective direction suppose, there is correctly settled the question about liability of the legal persons. In particular, in Article 110 of the Tax Code of the RF the blame of the legal person is determined depending on the blame o its officials or its representatives, whose actions (inactions) have conditioned the completion of the offense.
Depending on the fact how the representative of the "subjective-psychological" direction determine the will of the legal person, there can be specified two theories: "collective will" and "dominant will". The theory of "collective will" is based on the thesis that the "blame of the legal person is the special blame of the group". The supporters of the given theories consider that any legal person consists of individuals; and at the same time it is impossible to put the equal sign between the legal person and the group of people, comprising it, since each legal person is recognized by the law as an independent subject, existing regardless of physical persons.
There existed differences in opinions of scientists. Some of the supposed that the will of the organization is expressed in decisions, made by the skilled majority of its members; the others supposed that the blame should be determined by culpability of both single official - the chief, and the group of persons in each concrete offense depending on its type.
There have been expressed opinions that at determination of the composition of the administrative offense of the legal person it should not be significant what concrete worker is entrusted with performance of this or that duty, and for what reason exactly given worker has not performed it or has performed it improperly. In the opinion of S.N.Bratus, "offenses can be made by any body of the legal person, as well as each by worker or representative of the organizations, since the whole substratum of the legal person forms the willing group. It is necessary to consider that activity of the legal person is any action and in some cases inaction, as well as all workers of the legal person" .
The theory of "dominant will" considers the blame of the legal person in completion of the administrative offense as subjective attitude of the group of this legal person to illegal deed. This attitude is determined on dominating will, under which there is understood will of bodies of management of the organizations, its authorized officials, as well as other persons, eligible to give the obligatory instructions for the workers of the legal person. In this case the blame of the legal person should be understood as expression of the blame of the officials of administrations and should be considered proved solely at presence of the installed blame of the later.
In the European law (England, France and others.) there is widely spread the doctrine, according to which actions of majority of representatives of the managing composition of the corporation are identified with actions of the given corporations. On December 20, 1988 there were adopted Recommendations of the Committee of ministers of the countries - members of Council of Europe on liability of the legal persons for offenses, made in the course of conduct by them of economic activity. In these documents it was specified that, in the countries there does not exist the general law of the problem of the blame of physical persons to corporative units: the general rule is that the corporation can bear the criminal liability as well as the physical person. The given rule is based on the theory that directors or higher chiefs of management of the corporation legally are exactly the corporation that makes it responsible for criminal offenses .
"Psychological" understanding of the blame was worded in the Civil Code of the RSFSR 1964. The civilists of the soviet period positively valued fixing in the legislation of "psychological" understanding of the blame since it allowed absolutely clearly to delimit the blame and objective conditions of liability.
The Code of the Russian Federation about administrative offenses does not apply "psychological" approach. The forms of the blame, stated in Article 2.2 of the Code, can be applied only to physical persons. However Part 3 Article 2.1 of the Code of the Russian Federation about administrative offenses installs that the purpose of the administrative punishment to the legal person does not dispense from administrative responsibility for the given offense the guilty physical person. Actually in the given article there is applied incorrect wording of "psychological" direction: "the legal person is the guilty physical person".
According to V.D. Sorokin, "in the bunch" legal person is the guilty physical person", figuratively, speaking " the guilty is named only the physical person, and in respect of the other member of this bunch - the legal person the law refrains from adjective "guilty". This actually means bringing of the legal person to administrative liability without blame that, however, contradicts Part 1 Article 2.1 of the Code of the Russian Federation about administrative offenses according to which the legal person is subjected to liability only for offenses, in respect of which there is installed his blame" .
Thereby, "psychological" concept links the blame of the legal person only with presence of the blame of its worker, official, who has made this or that administrative offense. Here acts the presumption: if there is no blames of the worker, there is no blame of the legal person.
Considering the blame as subjective bases of liability, soviet civilists for its installation applied objective categories, searched for it in behavior of participants and have worked out "behavioral" concept. The blame of the legal person in the given concepts is defined as the complex of negative elements, conditioned by disorganization of activity of the legal person, rejection by him of the necessary measures for appropriate performance of entrusted on him duties, not making required efforts for prevention of offenses and removal of their reasons.
The given concept has appeared in science of the civil right. For creation of "behavioral" concepts of the blame there has been brought, on the one hand, impossibility of the practical application to organizations of "psychological" understanding of the blame, fixed in the Civil Code of the RSFSR from 1964, and on the other hand - the necessity to perform the requirements of law about entrusting on them liability solely at presence of the blame. This concept has got broad recognition in arbitration practice and was supported in instructions of the State Arbitration of the USSR from October 6, 1969 N I-1-33 "About practice of application of arbitration article 33 of the bases of the civil legislation", as well as the majority of scientists-civilists.
The elements of "behavioral" concepts could be seen in the first half of the 19th century. When the Senate in one of its explanations gave the definition of the notion of the blame from position of "behavioral" theory there was specified that " notion of the blame is suitable not only for the positive action, but for any omission in performance of the duties that is absence of such providence and care, which could prevent doing harm to others...".
The Civil Code of the RSFSR from 1922 also contained "behavioral" understanding of the blame. In 1930s G.N. Amphiteatrov offered instead of outdated "bourgeois" notion of the blame to enter the condition: "non application by the economic body of the self-supporting possibilities to performance of a contract" that, in fact, is the same blame, but in behavioral aspect.
At "behavioral" approach the scientists researched not psychology of the person, but his concrete actions, and the blame was defined as the phenomenon of the objective order .
The objective approach has found its reflection in the published in 1994 project of the general part of the Criminal Code of the RF , in which the ground for the criminal liability of the legal persons was worded as follows: "The legal person is subjected to criminal responsibility for the deed, provided by the criminal law if:
- the legal person guilty in nonperformance or improper performance of the direct prescription of the law, installing either duties or prohibition on realization of the determined activity;
- the legal person guilty in realization of activity, not corresponding to its constituent documents or declared purposes.
The deed caused harm or created threat of causing the harm to the person, society or state, was made in the interests of the given legal person or was admitted , authorized, approved, applied by the body or the person, realizing functions of management j of the legal persons. Criminal liability of the legal persons does not exclude liability of the physical person for the crime committed by him " .
In the foreign legislation we can find "behavioral" approach to determination of the blame of organizations. For instance, in the Federative Republic of Germany " the illegal action of the representatives or chiefs of corporations breaks the certain legal duties of the corporation or brings the financial advantage to the company (or pursued the purpose of financial advantage to the company), as well as at illegal actions of employee of the company, which could be prevented by its chiefs that is to say in the absence of due checking, and there is applied the system of imposing fines not only on physical persons, but on corporations as well".
In search of determination of the blame of organization from objective positions scientists tried to define the grounds for liberation of organization from liability. In recommendations of the Committee of ministers of the countries - members of the Council of Europe, adopted on December 20, 1988 N 88(18), is specified that the enterprise is freed from liability in the events, when management the enterprise was not used in offense and undertook all measures for its preventions.
In accordance with Part 2 Article 2.1 of the Code of the Russian Federation about administrative offenses the legal person is recognized guilty in completion of the administrative offense if it is installed that he had the possibility for observance of the rules and norms, for violation of which there is stipulated administrative responsibility by the working code or laws of the subject of the Russian Federation but the given person did not undertake all measures on its observance dependent on him. We can see that the Code of the Russian Federation about administrative has practically perceived "behavioral" concept of determination of the blame of the legal persons.
Sorokin V.D., sharply criticizing the stated above determination of the blame of the legal person, wrote that, beginning from discussion about the blame of the collective subject - the legal persons, the authors certainly "are rolled down" on the officials and there no grounds for substitution of the subject of offenses .
As a whole determination of the blame on "behavioral" concept suits only obligatory, but not for delict illegal relations, where it is impossible to define beforehand all necessary or required actions.
The given concept has become the result of critics of the blame of the legal persons from standpoint of "subjective" and "behavioral" approaches.
Some jurists supposed that for improvement of the blame of organization it is enough to install that the offense was the result of the defect of the organization, its disorganization; that the reason of non-execution of duties entrusted on the organization has been served insufficiency of efforts of the collective of the given organizations since objective expression of the blame can cover solely unwary form of its manifestation. In this connection there were brought forth the following propositions: the subjective understanding of the blame can be applied in the event of bringing of organization to responsibility for offenses, having material nature; objective understanding of the blame should cover only unwary form of manifestation and should spread on formal compositions of the collective actions .
In the opinion of G.K. Matveev, the notion of the blame can not be considered insulated from the legislative estimation of the psychic condition of the person, who made the illegal action. The psychic attitude of the offender to action committed by him (and further bad consequences) and negative estimation of the behavior of the offender impossible to insulate from each other. The delinquent, making illegal actions, always expects that these actions are in objective causal relationship with harm, but in the determined subjective (psychic) relationship with its consciousness and will. Consequently the action (the inaction) is recognized guilty in the event, when it is illegal. In other words, culpability always expects illegality, but not on the contrary: the action can be illegal, but not innocent. Thereby, in determination of the blame it is necessary to make the instruction to illegality and to emphasize by this that the blame is considered always in unity with illegality and the other sign of the offense. At the same time it is wrong to reduce the blame solely to illegal behavior of the person since it brings to objectivity of the notion of the blame. The blame and illegality are equally necessary grounds on civil-legal liability, however the blame means subjective (psychic) condition of the offender while the illegal behavior -is the objective fact.
In our opinion in the administrative law there can exist complex understanding of the blame of the legal person, including objective and subjective approaches. The blame of the legal person, who has violated statutory -legal acts about application of checking-cash equipment, according to the legal position of the Constitutional Court of the RF (item 4 motivated part of the Determination from December 14, 2000 N 244-O) , was made through the blame of employees of the given organizations. It means that in the subjective aspect the blame of the organizations and violation of the checking-cash equipment is revealed in guilty action (inaction) of the representatives of the organization and is concluded in non provision of performing of the rules by the physical persons, acting on behalf of the organizations.
Behavioral-psychological approach was installed in the Civil code of the Russian Federation 1994 . Thus, in accordance with item 1 Article 401 of the Civil Code of the RF "the person, not performing the duties or improperly performing them bears responsibility at presence of the blame (the intent or indiscretion)".
The person is recognized innocent, "if at that degree of care and circumspection, which was required from him on nature of the obligation and condition, he had taken all measures for proper performance of the obligation". In the opinion of some authors (Gadzhieva G.A., Dmitrieva O.V.), this determination of the blame includes dignity of the definitions of the blame of the both concepts.
On the one hand, it defines that the blame is an intent or indiscretion ("psychological" concept); on the other hand that the person is recognized innocent if he has taken all measures for proper performance of the obligations ("behavioral" concept).
Such determination of the blame is considered more ingenious since it excludes the possibility of entrusting of liability without blame both on physical, and on legal persons and is applicable not only to contractual, but to delict relations as well.
The concept of "social" blame (will). Liability of the legal person for the blame of the employee
The theory of "social" liability, "social" blame is stipulated in the legislation of Europe, the USA, Holland and other countries. In western literature they come to the conclusion that blame of the physical person has the psychological contents, and the blame of legal persons is socially ethical. Thus, in accordance with Recommendation of the Committee of ministers of countries - participants of the council of Europe on liability of enterprises of the legal persons for offenses, committed in the course of conduct of economic activity, adopted on December 20, 1988, checking for economic offenses requires imposing liability on the enterprise. In the USA the ground of liability of organizations (corporation) there was recognized the doctrine "let the senior answer ", existing in the civil delict law. According to given theory the person c bears civil responsibility for actions of their agents (representatives). For entrusting of criminal liability on the corporation it is necessary: first that the agent of the corporation should commit illegal action in reasonable condition (the guilty will); secondly, he should act, not leaving the frames of their own authorities; thirdly, the agent should intend to benefit to corporations.
In decision of the question, actions of such physical persons can bring to recognition of criminal liability of the legal person (corporation), there exist two main models. In accordance with the first model there are taken into consideration solely actions of managing employees of the organizations. According to the other model the corporation bears criminal liability for actions of any physical persons, acting in its name.
In Holland there have been offered two criteria for ringing of the company to criminal responsibility for actions of its own employee. First of all, the company should be able to determine, whether the employee should act in this way and whether actions of the employee should fall into the category of actions, presenting common business practice of the company. According to the Dutch system criminal liability of corporations is recognized in case when they check the actions of the employees and have the possibility to prevent illegal actions of the later. As a result, criminal liability of corporations equals to their "social" liability.
The Anglo-Saxon practice recognizes the illegal action, when the legal person commits, and the official purposely "connives" it or gives consent on completion of the offense. Liability of legal persons according to the Criminal Code of France is conditioned by the presence of two circumstances. The Criminal action should be committed: first, in favor of the legal person; secondly, by his chief or representative. Completion of the crime in favor of the legal person means that as a result of completion of the criminal action the legal person gets the certain advantage and as a rule there is meant property advantage, and "another profit" is not excluded.
The obligatory condition of the criminal liability of the legal person is completion of the criminal action by its chief or representative. Completion of the action by other persons (technical workers, servicing personnel, ordinary employees, not being official representatives of the legal person) does not bring to criminal liability of the organization.
In the Russian science of the criminal law we can come along the theories, which can be referred to the concept of "social" blame. So, the crime, committed by the legal person, is supposed to be recognized as socially dangerous action, committed by the persons, who check realization by the legal person of his rights and duties, on behalf of or in the interests of the later. But these are only doctrine positions and the Russian legislation does not still perceive the concept of the "social" blame.
Thereby, the uniform approach (understanding) of the blame of the legal person in the legal science, cannot be found.
The Legislative stipulation (the concept of the blame in administrative, tax and civil legislation).
The history of the question about administrative liability of legal persons such as follow: The order of the Presidium of the Supreme Soviet of the USSR from June 21, 1961 "About further restriction of application of fines, imposed in administrative order" forbid to impose fines on enterprises, institutions, organizations that is to apply administrative liability to legal persons. Administrative sanctions could be imposed only on the guilty in completion of administrative offenses of the chiefs of such structures.
Since 1990s in the Russian legislation there have appeared statutory acts spreading administrative liability on legal persons. The first there was adopted the Law of the Russian Federation from December 17, 1992 N 4121-1 "About administrative liability of enterprise, institutions, organizations and associations for offenses in the field of civil engineering" . The procedure of bring into liability was prescribed in Position about order of imposing fines for offenses in the field of the civil engineering, confirmed by the Resolution of the Government of the Russian Federation from July 2, 1993 N 729. Since then the administrative science has recognized the organizations the proper subject of administrative liability.
However in a number of legislative acts not each fine was considered as administrative sanction. To example, in the Order t of the President of Russian Federation from May 23, 1994 N 1006 "About realization of complex measures on dully and full putting into budget of taxes and other compulsory payments" there are clearly delimited financial liability of enterprise, institutions and organizations ( as fine of the corresponding degree of term) and administrative liability of chiefs of enterprises, institutions, organizations, who have made the specified offenses (as fine in 50-times amount of the minimum month payment of the labor) .
The given tendency has got the development in acts of the Constitutional Court of the Russian Federation, who on October 1, 1998 passed the Definition "At request of the Legislative Assembly of the Nizhegorodskaya region about the verification of constitutionality of Part 1 Article 6 the Code of the Russian Federation about administrative offenses ". Item 4 of the specified document contains the following: "...as of the question about possibility of bringing of the legal persons to administrative liability, it is settled by the federal lawmaker in the number of the acts, adopted in no event after coming into force of the Code of RSFSR about administrative offenses. In particular, legal persons can be called to administrative responsibility for offenses in the sphere of tax and customs bodies, civil engineering and urban planning, providing fire safety, etc. Positions of the Code of the Russian Federation about administrative offenses are not an obstacle to determination of administrative liability of legal persons since according to Part 3 Article 2 of position of the given Code spread on offenses, responsibility for completion of which is provided by legislation, not yet comprised of the given Code" .
Thereby, the idea of the blame of the legal persons has been beforehand embodied in the legislative acts of 1990-s. With return of private property, formation of new economic relations there appeared new offenses in economic sphere on part of managing subjects of different administrative legal forms, which it was necessary to stop. In what way? Out of all available types of legal liability alongside with criminal, civil and disciplinary the most suitable has turned out to be exactly administrative. It covered the whole sphere of state management, including economic, was realized in the majority by the bodies of executive authorities, on its procedure it was operative and, finally, contained rather nice sanction - a fine. In this connection it was not complicated to include the legal persons as subjects of administrative liability in the new Code of the Russian Federation about administrative offenses. But there appeared some difficulties with the blame of the legal persons.
Thinking about paradox of the Code of the Russian Federation about administrative offenses, V.D. Sorokin wrote: "Even elementary acquaintance with the wording of Part 2 Article 2.1 of the Code of the Russian Federation about administrative offenses, to say nothing of legal analysis, which is the further step, allows to estimate it as the unique in this sense that in its no sense!" . Critically analyzing the notion of the blame of the legal person in the Code of the Russian Federation about administrative offenses, it is possible to note the following:
1. The President of the Russian Federation, declining "on constitutional considerations" of the Code of the Russian Federation about administrative offenses in December 2000, supposed that in the Code there should be given corresponding determination of the notion of the blame, and there should be installed the criteria of culpability of the legal persons. Article 2.1 of the Code of the Russian Federation about administrative offenses which stipulates that " the legal person is recognized guilty", at the given moment has a great amount of commentaries that clearly means that it is contradictory. So, L.O. Ivanov writes that "Part 2 Article 2.1 of the Code of the Russian Federation about administrative offenses gives the determination of the blame of the legal person According to this wording it follows that the lawmaker has selected two criteria (or conditions), allowing to recognize the blame of the legal person: 1) presence of the possibility to execute the prescriptions of the corresponding rules and norms; 2) rejection of all depending on him measures upon their observance" . Hereunder, the author emphasizes that there is no form of the blame of the legal persons; these forms belong exactly to the physical person.
The author of the second variant of the commentary of Part 2 Article 2.1 of the Code of the Russian Federation about administrative offenses S.R.Furo states that " the illegal deed for recognition of it as the administrative offense should be made guilty that is with certain psychic attitude of the physical or legal person" . Thereby, in fact it is supposed to search for the psychic attitude of the legal person, which can consist of a thousand of physical persons.
Another narrator specifies that the new Code of the Russian Federation about administrative offenses has avoided the problems existing in the legislation, connected with administrative liability of the legal persons. Further after literal comment of Part 2 Article 2.1 of the Code of the Russian Federation about administrative offenses he comes to a rather unexpected conclusion: "In other words, there is selected the principle of objective presence" . But the specified article openly speaks of culpability of the legal person. Objective presence is bringing to the legal liability of the person, who has committed the offense, exactly on the fact of illegal deed and not moreover, where no analysis of the blame in general- is required.
2. Let's think that the legal person is the specific barrier of the blame of the specific subject. Here arises the question about the forms of the given "culpability". Article 2.2 of the Code of the Russian Federation about administrative offenses names two classical forms - the intent and indiscretion. Obviously the specification to the forms of the blame of the legal person is absurd.
3. The Determination of the blame of the legal person in Part 2 Article 2.1 of the Code of the Russian Federation about administrative offenses does not differ from determination of culpability of the physical person and, moreover, it can be first of all applied to him.
4. The analyzed norm shows that the legal person is brought to administrative responsibility for "non-observance" of installed "rules and norms". From theory of the administrative law it is well known that, besides observing (as way of realization of norms-prohibitions), there exists the more wide-spread way of realization of administrative-legal norms - the performance, requiring completion of active actions. All compositions, contained in the Code of the Russian Federation about administrative offenses, responsibility for "non-observance" comprises 17,4%, but for "infringement" - 82,6%.
5. Item 4 Article 110 of the Tax Code of the RF has stipulated that "the blame of organizations in completion of the tax offense is determined depending on the blame of its officials or its representatives, whose actions ( or inaction) have conditioned completion of the given tax offense". Another article (item 4 Article 108 of the Tax Code of the RF) states: " Bringing of the organizations to responsibility for completion of the tax offense does not free its officials at presence of the corresponding grounds from administrative, criminal and other liability, provided by the law of the Russian Federation". There arises one more paradox, testifying to theoretical "unfixing" at determination of the blame of the legal persons, brought to administrative liability.
According to the Constitutional Court of the RF, presence of the composition of the offense is the necessary ground for all types of legal liability. And signs of the composition of the offense should correlate with the constitutional principle of the democratic legal state, including the requirement of justice. Herewith to the bases of liability, coming from the general notion of the composition of the offense, should be referred the blame if exactly in the law there is directly and unequivocally installed another (the Resolution of the Constitutional Court of the RF from April 27, 2001 N 7-P).
Administrative liability comes not simply as the fact of completion of the illegal deed, caused bad consequences, but for guilty completion of such deed. The necessity of determination of the blame of the offender for bringing him to liability is directly stipulated by item 3 Article 26.1 of the Code of the Russian Federation about administrative offenses.
It is rather complicated to formulate the universal determination of the blame of the physical persons and organizations. The nature of the blame of the given subjects is different that is conditioned by different ways of formation, expression and manifestation of their will. Besides, determination of the blame of the organization depending on the blame of its officials or representatives is extremely unsuitable at proving in practice.
At application of objective-legal concept in administrative legal relations also causes significant difficulties since at present for determination of culpability of the legal person it is quite enough to determine exactly the fact of the offense. Accordingly, notion of culpability of the legal persons for completion of the administrative offenses has rather conditioned nature.
We think it is quite expedient at determination of the blame of the legal person to use the concept, offered by the civil legislation (item 2 Article 401 of the Civil Code of the RF), installing presumption of culpability of the person for improper execution of his own obligations, but giving the possibility to refuse the given presumption at determination of the subjective side of the offense.
On the account of the stated at decision of the question about possibility of bringing to administrative liability of the individual businessmen and j legal persons it should be useful to enter the institute of the compelling force in analogy with positions of the civil legislation. Thus, Article 401 of the Civil Code of the RF installs: if another is not provided by the law or agreement, the person, who has not performed or improperly performed the obligation at realization of business activity, has responsibility unless proves that improper performance turned out to be impossible in consequence of compelling force that is exceeding conditions at given circumstances. Herewith the Civil Code of the RF does not refer to the circumstances of the compelling force, in particular:...
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