Article 19.19. Violation mandatory requirements state standards, mandatory certification rules, violation of requirements normative documents to ensure the uniformity of measurements. 1. Violation of the mandatory requirements of state standards, with the exception of cases provided for in Articles 6.14, 8.23, 9.4, Part 1 of Article 12.2, Part 2 of Article 13.4, Article 13.8, Part 1 of Article 14.4, Article 20.4 of this Code, during the implementation (supply, sale) , use (operation), storage, transportation or disposal of products, as well as evasion of the presentation of products, documents or information necessary for the implementation of state control and supervision, -
shall entail the imposition of an administrative fine on officials in the amount of from five to ten times the minimum wage with confiscation of the subjects of the administrative offence; on legal entities - from fifty to one hundred times the minimum wage with confiscation of the subjects of the administrative offence.
2. Violation of the rules for mandatory certification, with the exception of cases provided for in Article 13.6, parts 2 and 4 of Article 13.12, part 2 of Article 14.4, part 2 of Article 14.16, Articles 20.4, 20.14 of this Code, that is, the sale of certified products that do not meet the requirements of regulatory documents for compliance with which it is certified, or the sale of certified products without a certificate of conformity (declaration of conformity), or without a mark of conformity, or without indicating in the accompanying technical documentation information about certification or regulatory documents that the specified product must comply with, or failure to provide this information to the consumer (buyer, customer), as well as the presentation of unreliable test results of products or the unjustified issuance of a certificate of conformity (declaration of conformity) for products subject to mandatory certification -
shall entail the imposition of an administrative fine on officials in the amount of from ten to twenty times the minimum wage with confiscation of the subjects of the administrative offence; on legal entities - from two hundred to three hundred times the minimum wage with confiscation of the objects of the administrative offence.
3. Violation of the rules for verification of measuring instruments, the requirements of certified methods for performing measurements, the requirements for the state of standards, established units of quantities or metrological rules and norms in trade, as well as the production, sale, rental or use of measuring instruments, the types of which are not approved, or the use of unverified measuring instruments -
shall entail the imposition of an administrative fine on officials in the amount of from five to ten times the minimum wage; for legal entities - from fifty to one hundred times the minimum wage.
Commentary on Article 19.19
1. Article 19.19 of the Code of Administrative Offenses of the Russian Federation consists of three parts. Cases of offenses containing signs of compositions, fixed parts 1 and 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation, art. 23.1 of the Code of Administrative Offenses of the Russian Federation instructed the arbitration courts.
Prior to the entry into force of the Code of Administrative Offenses of the Russian Federation, administrative responsibility for violating the rules of standardization and certification was regulated by Art. 170 of the Code of Administrative Offenses of the RSFSR, and such cases were considered by the bodies of the State Standard of Russia.
2. The generic object of offenses under Parts 1 and 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation is the management procedure, and the specific one is public relations related to the standardization of products, works, services, as well as product certification.
Law of the Russian Federation of 06/10/1993 N 5154-1 "On standardization" became invalid due to the adoption federal law dated December 27, 2002 N 184-FZ "On technical regulation". 3. Part 1 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation establishes liability for violation of the mandatory requirements of state standards. The legal basis for standardization in our country is established by the Law of the Russian Federation "On Standardization", adopted on June 10, 1993. In order to ensure the safety of products, works and services for environment, life, health and property, ensuring technical and information compatibility, interchangeability of products, unity of methods for their control The law established that the requirements of the standards are mandatory.
State control and supervision over compliance by business entities with the requirements of GOSTs is carried out at the stages of development, preparation of products for production, their manufacture, sale, use, storage, transportation, disposal, as well as the performance of work and the provision of services.
Part 1 Art. 19.19 of the Code of Administrative Offenses of the Russian Federation contains general rules that do not apply if liability is regulated by special rules (Articles 6.14, 8.23, 9.4, Parts 1 and 2 of Article 12.2, Part 2 of Article 13.4, Article 13.8, Part 1 of Art. 14.4, article 20.4 of the Code of Administrative Offenses of the Russian Federation).
The objective side of the composition, enshrined in Part 1 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation is an alternative. It contains two options for signs of an offense. First, signs such as:
a) act - a violation, which may be an act or omission;
b) act - state standard;
c) ways of committing unlawful acts:
- realization (sale, delivery) of production;
- use, operation of products;
- storage of products;
- transportation of products;
- disposal of products.
Secondly, an alternative option is to evade the presentation of products, documents or information necessary for the implementation of state supervision and control. Here the Law names such signs as:
a) act - evasion, failure to fulfill an obligation;
b) means (objects) - products, documents, information;
c) "other person" (victim) - the subject of state control and supervision of standardization.
It should be noted that evasion (failure to fulfill a duty) is not limited by the law. Consequently, if the obligation is fulfilled before the protocol on the offense is drawn up (the decision is made on the case), there is no corpus delicti in the actions of the accused.
4. The law does not establish the form of guilt, which means that liability under Part 1 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation can occur for both intentional and careless actions.
The subjects of the act in question may be legal entities and officials, and therefore individual entrepreneurs.
Part 1 Art. 170 of the Code of Administrative Offenses of the RSFSR provided for the imposition of a fine on guilty officials in the amount of 5 to 100 minimum wages. And according to part 1 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation, officials may be fined in the amount of 5 to 10 minimum wages with confiscation of the objects of the offense.
The Law of the Russian Federation of 10.06.1993 N 5151-1 "On Certification of Products and Services" became invalid due to the adoption of the Federal Law of 27.12.2002 N 184-FZ "On Technical Regulation". 5. Giving a brief description of Part 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation, we can say that it establishes administrative liability for violation of the certification rules established by the Law of the Russian Federation of June 10, 1993 "On Certification of Products and Services".
Product certification is a conformity assessment procedure whereby an independent organization certifies in writing that a product conforms to specified requirements. Certificate of Conformity - a document issued in accordance with the current rules to confirm the conformity of this product with the established requirements. Mark of conformity - a mark registered in the prescribed manner, which confirms the conformity of the products marked with it to the established requirements.
Mandatory certification is carried out in cases stipulated by the laws of the Russian Federation and federal laws. In such cases, the effect of certification and mark of conformity extends to the entire territory of the country.
Part 2 Art. 19.19 of the Code of Administrative Offenses of the Russian Federation is a general rule and therefore it does not apply if special rules of the Code of Administrative Offenses of the Russian Federation (Articles 13.6, Parts 2 and 4 of Article 13.12, Part 2 of Article 14.4, Part 2 of Article 14.16, Articles 20.4, 20.14 ) established administrative liability for violation of certification rules certain types products.
6. The objective side of the considered administrative offense is an alternative. The first variant of the illegal act includes three signs of the objective side:
1) act - violation of the rules;
2) the subject of the offense - products;
3) the following ways of committing an act:
- sale of certified products that do not meet the requirements of regulatory documents for which they are certified;
- sale of certified products without a certificate of conformity (declaration of conformity), or without a mark of conformity, or without indicating in the accompanying technical documentation information about certification or regulatory documents that the specified products must comply with;
- failure to provide the consumer (buyer, customer) with the information on product certification established by law when selling products.
The second (alternative) version of the objective side includes such signs as:
- submission of unreliable product test results;
- unreasonable issuance of a certificate of conformity (declaration of conformity) for products subject to mandatory certification.
The difference between the two options for the objective side of the offense under Part 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation becomes more obvious if we consider that in the first case we are talking about the acts of persons selling products, and in the second - about the actions of persons who are authorized to certify products and issue relevant documents.
7. The subjects of the commented offense may be officials and legal entities. Sign - a form of guilt - the composition does not contain.
8. Protocols on the commission of offenses containing the signs provided for in Parts 1 and 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation, have the right to draw up officials of internal affairs bodies, state mining and industrial supervision bodies, as well as standardization, metrology and certification bodies.
Chapter 4. PROCEDURAL AND LEGAL BASES
ADMINISTRATIVE RESPONSIBILITY
§ 1. General Provisions
The objectives of proceedings in cases of administrative offenses are a comprehensive, complete, objective and timely clarification of the circumstances of each case, its resolution in accordance with the law, ensuring the execution of the decision, as well as identifying the causes and conditions that contributed to the commission of administrative offenses.
The requirement for comprehensiveness and completeness of the study means that all the circumstances that are important for considering the case and making the right decision on it must be established. It is necessary first of all to establish the following: 1) whether there was an administrative offense; 2) whether the given person is guilty of committing this offence; 3) whether it is subject to administrative responsibility; 4) whether this person has caused property damage to the victim; 5) whether there are circumstances aggravating or mitigating liability, or grounds for terminating the case; 6) other necessary information about the person who committed the administrative offense (his age, state of health, official status, property status, etc.); 7) other data relevant to the case.
The need for an objective consideration of the circumstances of the case determines the impartial and respectful attitude of the judge both to the person in respect of whom the proceedings are being conducted, and to his petitions and other statements. A priori, an accusatory bias, neglect of circumstances testifying in favor of the person held accountable are unacceptable. Objectivity also requires equal and equal relations between the judge and all participants in the proceedings: with the victims, their legal representatives, defense lawyers and representatives, witnesses and other persons, relations must be impartial and respectfully cultural.
The timeliness of clarification of the circumstances of the case means compliance with the provisions of Art. 28.5, 28.7, 28.8, 29.6, 30.3, 30.5 of the Code of Administrative Offenses of the Russian Federation of procedural terms, which contributes, on the one hand, to the inevitability of bringing the perpetrators to justice, and on the other hand, to the prevention of the commission of offenses.
The indication in Art. 24.1 of the Code of Administrative Offenses of the Russian Federation to resolve the case in accordance with the law as one of the tasks of proceedings in cases of administrative offenses is of paramount importance, since no one can be held administratively liable except on the basis and in the manner prescribed by law. Also, the most important task of the proceedings, which requires the active organizational activity of the relevant bodies, is to ensure the execution of the decision made in the case. Non-execution of the decision or its execution does not completely reduce the effectiveness of the fight against administrative offenses, makes it difficult to achieve the goals of the administrative-punitive policy.
Relevant for the proceedings on the case of an administrative offense is also a preventive task, designed to identify the causes and conditions that contribute to the commission of administrative offenses. The judge, body, official considering the case (including the judge of the arbitration court), when establishing the causes of an administrative offense and the conditions that contributed to its commission, in accordance with Art. 29.13 of the Code of Administrative Offenses of the Russian Federation, they are included in relevant organizations and to the relevant officials, a presentation on the adoption of measures to eliminate the indicated causes and conditions. Organizations and officials are obliged to consider such a submission within a month from the date of its receipt and report on the measures taken to the judge, body, official who made the submission.
Proceedings on cases of administrative offenses are conducted in Russian - the state language Russian Federation. Along with the state language of the Russian Federation, proceedings on cases of administrative offenses may be conducted in the state language of the republic on whose territory the judge, body, official authorized to consider cases of administrative offenses is located. Persons involved in the proceedings on an administrative offense and who do not speak the language in which the proceedings are conducted are provided with the right to speak and give explanations, file motions and challenges, file complaints in their native language or in another language of communication freely chosen by them, as well as use the services of an interpreter.
The persons conducting the proceedings on the case (including the judges considering the case) are obliged to explain to the participants in the proceedings their right to use the language they know and the services of an interpreter. If persons who do not speak the language in which the case is being heard are involved in the proceedings, the judge considering the case is obliged to invite an interpreter. The same applies to sign language interpretation, which must be provided to deaf or dumb participants in the proceedings on an administrative offense. Procedural documents to the persons participating in the case must be handed over in a translation into the language they speak.
Cases of administrative offenses are subject to open consideration, except in cases where this may lead to the disclosure of state, military, commercial or other secrets protected by law, as well as in cases where this is required by the interests of ensuring the safety of persons participating in the proceedings on an administrative offense , members of their families, their relatives, as well as protecting the honor and dignity of these persons. A decision on closed consideration of a case on an administrative offense shall be issued by a judge, body, official, considering the case, in the form of a ruling.
Open consideration of cases means that it takes place in the presence of the public and those who wish have free access to the hall. In accordance with Art. 11 of the Arbitration Procedure Code of the Russian Federation, persons present at an open court session have the right to take notes along the way. court session and fix it with audio recording tools. However, filming and photography, video recording, as well as broadcasting the court session of the arbitration court on radio and television are allowed only with the permission of the judge.
In the presence of those specified in Art. 24.3 of the Code of Administrative Offenses of the Russian Federation of grounds, the issue of closed consideration of the case is entitled to be raised both by the participants in the proceedings on the case, and by the judges, bodies, officials authorized to consider it.
In Art. 24.3 of the Code of Administrative Offenses of the Russian Federation indicates the possibility of holding a closed consideration of the case, if this can lead to the disclosure of state secrets. The same indication is contained in Art. 11 APC RF. The list of information constituting a state secret is determined by the Law of the Russian Federation of July 21, 1993 "On State Secrets" (as amended by the Federal Law of October 6, 1997 and amended by Resolution of the Constitutional Court of the Russian Federation of March 27, 1996 N 8-P). This information is also defined by Decree of the President of the Russian Federation of November 30, 1995 N 1203 "On approval of the List of information classified as state secrets" (as amended by Decrees of the President of the Russian Federation of January 24, 1998 N 61, of June 6, 2001 N 659 , dated September 10, 2001 N 1114, dated May 29, 2002 N 518).
In Art. 24.3 of the Code of Administrative Offenses of the Russian Federation also indicates the possibility of holding a closed hearing of the case, if this may lead to the disclosure of commercial or other secrets protected by law. In Art. 11 of the Arbitration Procedure Code of the Russian Federation states that the trial of a case in a closed court session is allowed upon satisfaction of the petition of a person participating in the case and referring to the need to preserve not only commercial, but also official secrets. According to Art. 139 of the Civil Code of the Russian Federation, information constitutes an official or commercial secret in the case when the information has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis, and the owner of the information takes measures to protect its confidentiality.
As for "other secrets protected by law," as an example, one can cite the provision of the RF IC prohibiting the disclosure of the secret of adoption. In general, according to Art. 23 of the Constitution of the Russian Federation, everyone has the right to privacy, personal and family secrets, as well as the secrecy of correspondence, telephone conversations, postal, telegraph and other messages. These rights are limited solely by the decision of the court. In this regard, telegraphic messages, personal correspondence of citizens can be announced with the consent of the persons between whom they occurred. In other cases, it should be announced only in closed proceedings.
At a closed consideration of the case, there are: the person in respect of whom the proceedings are being conducted; victim; legal representatives of an individual; legal representatives of a legal entity; defender, representative, and, if necessary, witnesses, specialists, experts, translators.
The decision on the case is announced publicly and should not contain information for the sake of preserving the secrecy of which the consideration of the case was closed.
Persons participating in the proceedings on a case of an administrative offense have the right to file petitions subject to mandatory consideration by the judge, body, official in charge of the given case. The request is made in writing and is subject to immediate consideration. The decision to refuse to satisfy the application is made in the form of a ruling.
Proceedings in a case concerning an administrative offense may not be initiated, and the commenced proceedings are subject to termination in the presence of at least one of the following circumstances: 1) the absence of an event of an administrative offense; 2) the absence of an administrative offense, including the failure by an individual at the time of the commission of unlawful actions (inaction) of the age provided for by the Code of Administrative Offenses of the Russian Federation for bringing to administrative responsibility, or the insanity of the individual who committed unlawful actions (inaction); 3) actions of a person in a state of emergency; 4) issuance of an act of amnesty, if such an act eliminates the application of an administrative penalty; 5) repeal of the law that established administrative liability; 6) expiration of the limitation period for bringing to administrative responsibility; 7) the presence, on the same fact of committing unlawful actions (inaction) by a person in respect of whom proceedings are being conducted on an administrative offense, of a decision to impose an administrative penalty, or a decision to terminate proceedings in a case of an administrative offense, or a decision to initiate a criminal affairs; 8) the death of a natural person in respect of whom proceedings are being conducted in a case concerning an administrative offence.
In accordance with Art. 24.6 of the Code of Administrative Offenses, supervision over observance of the Constitution of the Russian Federation and the implementation of laws in force on the territory of the Russian Federation in cases of administrative offenses is carried out within the limits of their competence by the Prosecutor General of the Russian Federation and prosecutors appointed by him. However, the prosecution authorities do not exercise supervision over cases pending before the court.
According to Art. 24.7 of the Code of Administrative Offenses of the Russian Federation, the costs in a case of an administrative offense consist of: 1) amounts paid to witnesses, attesting witnesses, specialists, experts, translators; 2) amounts spent on storage, transportation (transfer) and examination of physical evidence. According to Art. 106 of the Arbitration Procedure Code of the Russian Federation, legal costs associated with the consideration of a case in an arbitration court include amounts of money payable to experts, witnesses, translators, costs associated with on-site examination of evidence, costs of paying for the services of lawyers and other persons providing legal assistance, and other expenses incurred by the persons participating in the case in connection with the consideration of the case.
Expenses in a case of an administrative offense provided for by the Code of Administrative Offenses of the Russian Federation and committed by an individual are charged to the federal budget, and expenses in a case of an administrative offense provided for by the law of a constituent entity of the Federation and committed by an individual - to the account of the budget of the corresponding constituent entity of the Federation. Naturally, such a procedure applies to persons engaged in entrepreneurial activities without forming a legal entity.
Expenses in the case of an administrative offense committed by a legal entity shall be charged to the account of this legal entity, with the exception of the amounts paid to the translator. Amounts paid to an interpreter in connection with the consideration of a case of an administrative offense provided for by the Code of Administrative Offenses of the Russian Federation and committed by a legal entity are credited to the federal budget, and cases of an administrative offense provided for by the law of a constituent entity of the Federation and committed by a legal entity are credited to the budget of the corresponding constituent entity of the Federation.
In the event of termination of proceedings in a case on an administrative offense provided for by the Code of Administrative Offenses of the Russian Federation and committed by a legal entity, the costs are charged to the federal budget. In the event of termination of proceedings in a case on an administrative offense provided for by the law of a constituent entity of the Federation and committed by a legal entity, the costs are charged to the budget of the corresponding constituent entity of the Federation.
The amount of costs in the case of an administrative offense is determined on the basis of the documents attached to the case, confirming the existence and size of the costs attributed to the costs. The sums of money to be paid to experts, witnesses and translators are established by Art. 107 APC RF. The decision on the costs in a case concerning an administrative offense shall be reflected in the decision on the imposition of an administrative penalty or in the decision on the termination of proceedings in the case concerning an administrative offense.
§ 2. Participants in proceedings in cases of administrative
offences, their rights and obligations
A person in respect of whom proceedings are being conducted in a case of an administrative offense has the right to get acquainted with all the materials of the case, give explanations, present evidence, file motions and challenges, use legal assistance of a defense lawyer, as well as other procedural rights in accordance with the Code of Administrative Offenses of the Russian Federation.
The case of an administrative offense is considered with the participation of the person in respect of whom the proceedings on the case of an administrative offense are being conducted. In the absence of the said person, the case may be considered only in cases where there is evidence that the person was duly notified of the place and time of the consideration of the case, and if the person did not file a petition to postpone the consideration of the case or such a petition was not satisfied. The judge, body, official considering the case of an administrative offense shall have the right to recognize as obligatory the presence of the person in respect of whom the proceedings are being conducted during the consideration of the case. When considering a case on an administrative offense entailing administrative arrest or administrative expulsion from the Russian Federation of a foreign citizen or stateless person, the presence of the person in respect of whom the proceedings are being conducted is mandatory. A minor who is being prosecuted in a case of an administrative offense may be removed for the time of consideration of the circumstances of the case, the discussion of which may have a negative impact on the specified person.
The person in respect of whom proceedings are being conducted on the case of an administrative offense may be both an individual and a legal entity. Judges of arbitration courts consider cases of administrative offenses provided for by the Code of Administrative Offenses of the Russian Federation and committed by legal entities, as well as individual entrepreneurs.
The legal entity in respect of which the proceedings are being conducted is represented in the process by its legal representatives, who are the head of this legal entity, as well as another official recognized in accordance with the law or founding documents body of a legal entity. The obligatory presence of a legal representative of a legal entity when considering a case on an administrative offense committed by this legal entity is not provided for by law, the presence of his lawyer is sufficient. However, the judge, body, official in charge of the case of an administrative offense has the right, in a particular case, to recognize the presence of a legal representative of a legal entity as obligatory (for more details, see below).
As already noted, the person in respect of whom proceedings are being conducted on the case of an administrative offense is granted the right to give explanations. This right should be understood as the right this person give explanations on their own initiative, and not as an obligation to give such explanations, since, subject to the provisions of Art. 51 of the Constitution of the Russian Federation, it is obvious that this person may refuse to give explanations. In this regard, for refusal or evasion from giving explanations, the responsibility of the person in respect of whom proceedings are being conducted on the case of an administrative offense is not provided.
Among the rights listed above of a person in respect of whom proceedings are being conducted in a case of an administrative offense, one of the most important is the right to file petitions and challenges. In particular, the said person (his legal representative) has the right to file petitions for the attachment of documents and material evidence to the case, for the summoning of witnesses, for the involvement and hearing of a specialist, for the appointment of an expert in the case, the right to propose questions submitted for the permission of an expert. The petition must be declared by the person in respect of whom the case is being prosecuted in writing and is subject to immediate consideration by the judge, body, official in charge of the case.
If there are circumstances provided for by Article 25.12 of the Code of Administrative Offenses of the Russian Federation and excluding the possibility of participation in the proceedings on an administrative offense as a defender, representative, specialist, expert or translator, the person in respect of whom the proceedings are being conducted (his legal representative) has the right to file to the judge, body, official, in whose proceedings the case is, an application for the removal of these persons.
A victim is an individual or legal entity who has suffered physical, property or moral harm by an administrative offense. The victim has the right to get acquainted with all the materials of the case of an administrative offense, give explanations, present evidence, file petitions and challenges, use the legal assistance of a representative, appeal against the decision on the case, enjoy other procedural rights in accordance with this Code. The case of an administrative offense is considered with the participation of the victim. In his absence, the case may be considered only in cases where there is evidence of a proper notification of the victim about the place and time of the hearing of the case and if the victim has not received a request to postpone the consideration of the case or such request has been left without satisfaction. The victim may be interrogated according to the rules of Art. 25.6 of the Code of Administrative Offenses of the Russian Federation, i.e. as a witness.
Property damage caused to the victim as a result of an administrative offense is mainly minor damage. When making a decision on a case of an administrative offense, the valuation of damage is often extremely important, since for a number of offenses the cost of property damage in general is the basis for distinguishing misdemeanors from criminal encroachments.
The legislator does not determine which body or which official can recognize an individual or legal entity as a victim of an administrative offense. Unlike the criminal procedure legislation, neither Art. 25.2, nor other articles of the Administrative Code of the Russian Federation establish a special procedural procedure for recognizing a person as a victim. However, within the meaning of a number of provisions of the Code of Administrative Offenses of the Russian Federation, it is obvious that the recognition of a person as a victim of an administrative offense is carried out by the judge, body, official in charge of the case. This is evidenced, in particular, by Art. 29.10 of the Code of Administrative Offenses of the Russian Federation that if, when deciding on the appointment of an administrative penalty for an offense by a judge, the issue of compensation for property damage is simultaneously resolved, then the decision on the case of an administrative offense indicates the amount of damage to be compensated, the terms and procedure for its compensation.
As already noted, the victim has the right to give explanations. Such a right, just like that granted to the person in respect of whom the proceedings are being conducted, should be understood as the right to give explanations on one's own initiative. In Art. 25.2 of the Code of Administrative Offenses of the Russian Federation does not say anything about the obligation of the victim to appear when summoned by the judge, body, official in charge of the case of an administrative offense, and give truthful testimony, however, it is indicated that the victim can be interrogated according to the rules provided for in Art. 25.6 of the Code of Administrative Offenses of the Russian Federation for a witness. In this case, the victim, like the witness, is obliged to appear when summoned by the judge, body, official in charge of the administrative offense case, and give truthful testimony (tell him everything known to him in the case, answer the questions posed).
Legal representatives of an individual. Protection of the rights and legitimate interests of an individual in respect of whom proceedings are being conducted on an administrative offense, or a victim who is a minor or, due to their physical or mental condition, deprived of the opportunity to independently exercise their rights, is carried out by their legal representatives. The legal representatives of an individual are his parents, adoptive parents, guardians or trustees. Family ties or relevant powers of persons who are legal representatives of a natural person are certified by documents provided for by law.
The legal representatives of the natural person in respect of which proceedings are being conducted on the case of an administrative offense and the victim have the rights and bear the obligations provided for by the Code of Administrative Offenses of the Russian Federation in relation to the persons they represent. When considering a case on an administrative offense committed by a person under the age of 18, the judge, body, official considering the case on an administrative offense has the right to recognize the mandatory presence of the legal representative of the said person.
In accordance with the procedure established by civil procedural legislation, a citizen is recognized by the court as incapable if, due to a mental disorder, he cannot understand the meaning of his actions or control them. On behalf of a citizen recognized as incompetent, his guardian acts. A citizen who, due to the abuse of alcohol or drugs, puts his family in a difficult financial situation, may be limited by the court in his legal capacity in the manner prescribed by civil procedural legislation. Guardianship is established over him.
Legal representatives of citizens can act in the interests of only two participants in the proceedings on cases of administrative offenses: 1) the person in respect of whom the proceedings are being conducted, and 2) the victim. On behalf of the person in respect of whom the proceedings are being conducted and the victim, their legal representatives perform all procedural actions, the right to perform which belongs to the represented.
Legal representatives of a legal entity. Protection of the rights and legitimate interests of a legal entity in respect of which proceedings are being conducted on an administrative offense, or a legal entity that is a victim, is carried out by its legal representatives. The legal representatives of a legal entity are its head, as well as another person recognized in accordance with the law or the constituent documents of the body of the legal entity. The powers of the legal representative of a legal entity are confirmed by documents certifying his official position.
The case of an administrative offense committed by a legal entity is considered with the participation of its legal representative or defense counsel. In the absence of these persons, the case may be considered only in cases where there is evidence that the persons were duly notified of the place and time of the consideration of the case, and if they did not submit a request to postpone the consideration of the case, or such a request was left without satisfaction. When considering a case on an administrative offense committed by a legal entity, the judge, body, official in charge of the administrative offense case shall have the right to recognize the mandatory presence of a legal representative of the legal entity.
As already noted, the legal entity in respect of which proceedings are being conducted on an administrative offense, or the legal entity that is the victim, is represented in the process by their legal representatives, who are the head of a particular legal entity, as well as an official recognized in accordance with law or constituent documents by the body of a legal entity.
So, according to Art. 91 of the Civil Code of the Russian Federation, an executive body (collegial and (or) sole) is created in a limited liability company, which carries out the current management of its activities. The executive body of the joint-stock company in accordance with Art. 103 of the Civil Code of the Russian Federation, there may be a board, a directorate (a collegial body) and (or) a sole manager - a director, a general director, etc. The provisions of the Civil Code of the Russian Federation are specified by the norms of federal laws governing the legal status, organization and activities of certain types of legal entities, for example, the Federal Law of February 8, 1998 "On Limited Liability Companies".
However, there is also local regulatory regulation of the organization and activities of legal entities. First of all, these are constituent documents and internal documents of legal entities adopted on their basis - local statutory normative documents that determine certain issues of organization and activities of the governing bodies of a legal entity. In addition, legal entities issue a large number of acts of law enforcement activities of the governing bodies themselves (orders, instructions, decisions, etc.). It is important to emphasize that the legal representative of a legal entity in the process of proceedings on cases of administrative offenses, in addition to its head, can only be a person recognized as such in accordance with the law or constituent documents, and not in accordance with the acts of the governing bodies of the legal entity.
Although Art. 25.4 of the Code of Administrative Offenses of the Russian Federation and it is not indicated that only its sole body - an individual can be the legal representative of a legal entity in proceedings on administrative offenses, within the meaning of this article, it is clear that these functions cannot be performed by a collegial governing body. This is clear, in particular, from the provisions of Parts 3 and 4 of Art. 25.4 of the Code of Administrative Offenses of the Russian Federation regarding the presence of a legal representative of a legal entity during the consideration of the case.
The powers of the sole manager as a legal representative of a legal entity are confirmed by documents certifying his official position - an official certificate or a relevant certificate. The sole manager acts on behalf of a legal entity, including representing its interests in the process of proceedings on an administrative offense, without a power of attorney. For example, according to Art. 40 of the Federal Law "On Limited Liability Companies", the general director acts on behalf of the company without any power of attorney within the competence established in the company's charter, the relevant internal document and the agreement with it. His powers include the ability to represent the interests of society in state bodies and in court.
The powers of the legal representative of a legal entity that is not its head are also confirmed by documents certifying his official position, but an official certificate or a relevant certificate in this case is not enough. Within the meaning of Art. 25.4 of the Code of Administrative Offenses of the Russian Federation, it is possible to present to the judge, body, official, in whose proceedings the case of an administrative offense is located, a copy of the constituent or other document, which determines the possibility of participation of this person in the proceedings as a legal representative. However, it is advisable to certify the powers of the legal representative with an appropriate power of attorney.
As noted above, the law does not provide for the obligatory presence of a legal representative of the legal entity in respect of which the proceedings are being conducted during the consideration of a case on an administrative offense, the presence of his defense lawyer is sufficient. The obligatory presence of the legal representative of the injured legal entity during the consideration of the case is also not provided for by law. However, in accordance with Art. 25.4 of the Code of Administrative Offenses of the Russian Federation, when considering a case on an administrative offense committed by a legal entity, a judge, body, official has the right to recognize the presence of a legal representative of a legal entity as mandatory. Since the legislator does not specify whether in this case only the legal representative of the person held liable is meant, or, at the same time, the legal representative of the injured legal entity, the judge, body, official may recognize the obligatory presence of both during the consideration of the case.
Protector and representative. In order to provide legal assistance to a person in respect of whom proceedings are being conducted on an administrative offense, a defense counsel may participate in the proceedings on an administrative offense, and to provide legal assistance to the victim - a representative. A lawyer or other person is allowed to participate in the proceedings on an administrative offense as a defense counsel or representative. The powers of a lawyer are certified by a warrant issued by a legal advisory office. The powers of another person providing legal assistance shall be certified by a power of attorney drawn up in accordance with the law.
The defense counsel and the representative are allowed to participate in the proceedings on the case of an administrative offense from the moment the protocol on the administrative offense is drawn up. In the case of administrative detention of an individual in connection with an administrative offense, the defense counsel is allowed to participate in the proceedings on an administrative offense from the moment of administrative detention.
A defense counsel and a representative admitted to participate in proceedings on a case of an administrative offense have the right to get acquainted with all the materials of the case, present evidence, file motions and challenges, participate in the consideration of the case, appeal against the application of measures to ensure the proceedings in the case, the decision on the case, use other procedural rights in accordance with the Code of Administrative Offenses of the Russian Federation. The defense counsel and the representative have the right, in particular, to file petitions for the attachment of documents and material evidence to the case, for the summoning of witnesses, for the involvement and hearing of a specialist, for the appointment of an expert in the case, and also have the right to propose questions submitted for the permission of an expert, etc.
An important right granted to the defender and the representative is the right to challenge. In the presence of circumstances, under Part. 2 Article. 25.12 of the Code of Administrative Offenses of the Russian Federation and excluding the possibility of participation in the proceedings on an administrative offense of a person as a specialist, expert or translator, the defense counsel and the representative have the right to submit to the judge, body, official in charge of the case, an application for the challenge of these persons.
Witness. A person who may be aware of the circumstances of the case to be established may be called as a witness in a case concerning an administrative offense. The witness is obliged to appear when summoned by the judge, body, official in charge of the case of an administrative offense, and give truthful testimony: tell everything known to him in the case, answer the questions posed and certify with his signature in the relevant protocol the correctness of entering his testimony.
A witness has the right: 1) not to testify against himself, his spouse and close relatives (parents, children, adoptive parents, adopted children, siblings, grandfathers, grandmothers, grandchildren); 2) testify in their native language or in the language they speak; 3) use the free assistance of an interpreter; 4) make comments on the correctness of entering his testimony in the protocol. The witness is warned of administrative liability for giving knowingly false testimony. For refusal or for evasion from the performance of duties under Part 2 of Art. 25.6 of the Code of Administrative Offenses of the Russian Federation, the witness bears administrative responsibility, provided for by the Code of Administrative Offenses of the Russian Federation.
Note that the law does not prohibit the summoning of spouses and close relatives as witnesses, they cannot only be forced to testify. If they themselves wish to act as witnesses in the case, family ties cannot serve as a basis for refusing to involve these persons in the proceedings. At the same time, a pre-established negative attitude to the reliability of their testimony is also unacceptable, even if they really raise doubts about objectivity. These statements must be evaluated along with other evidence collected in the case.
Police officers, other persons who stopped the offense, detained the person in respect of whom the proceedings are being conducted, personal search, search of things, seizure of things and documents, other measures to ensure production can also be called as witnesses. The interrogation of police officers as witnesses is admissible, in particular, on the issue of the grounds for detention and whether they have been approached by other persons with reports of the unlawful actions of the person against whom the proceedings are being conducted. Witnesses who were present at the same time can also testify about the circumstances of the application of measures to ensure production (for example, in connection with gaps in the relevant protocols). Witnesses may be employees of control and auditing bodies, supervisory bodies, inspections, who collected materials that served as the basis for initiating proceedings on an administrative offense.
The legislator does not establish the age at which a person may act as a witness. The ability to correctly perceive an event and testify about it depends on the conditions of upbringing, the degree of development, and the nature of the perceived facts. Therefore, in necessary cases, witnesses may be minors, and in exceptional cases, minors. At the same time, however, the degree of their development, the state of the sense organs and other data necessary for the correct assessment of their testimony should be clarified. To do this, parents and educators can be interviewed, and, if necessary, a psychological examination is assigned. It is recommended that minor witnesses be interviewed in their usual surroundings, taking frequent breaks. When interviewing a witness under the age of 14, the presence of a teacher or psychologist is mandatory. If necessary, the interrogation is conducted in the presence of the legal representative of the minor witness.
Understood. In the cases provided for by the Code of Administrative Offenses of the Russian Federation, any adult person who is not interested in the outcome of the case may be involved as a witness, by the official in charge of the case. The number of witnesses must be at least two. The presence of attesting witnesses is mandatory in the cases provided for in Ch. 27 of the Code of Administrative Offenses of the Russian Federation, i.e. when applying measures to ensure proceedings in cases of administrative offenses. The witness certifies in the protocol with his signature the fact of the commission of procedural actions in his presence, their content and results. The participation of attesting witnesses in the proceedings on an administrative offense is recorded in the protocol. The witness has the right to make comments about the ongoing procedural actions. The witness's remarks shall be entered into the protocol. If necessary, the witness may be questioned as a witness in accordance with Art. 25.6 of the Code of Administrative Offenses of the Russian Federation.
The law does not provide for liability for refusal to perform the duties of a witness. However, if the witness, if necessary, must be questioned as a witness, for refusing or evading the performance of duties under Part 2 of Art. 25.6 of the Code of Administrative Offenses of the Russian Federation, he bears administrative responsibility.
Specialist. Any adult who is not interested in the outcome of the case and has the knowledge necessary to assist in the discovery, consolidation and seizure of evidence, as well as in the use of technical means, may be involved as a specialist to participate in the proceedings on an administrative offense. The specialist is obliged to: 1) appear when summoned by the judge, body, official in charge of the administrative offense case; 2) participate in carrying out actions that require special knowledge, in order to detect, consolidate and withdraw evidence, give explanations about the actions he performs; 3) certify with his signature the fact of the said actions, their content and results. The specialist is warned of administrative responsibility for giving deliberately false explanations.
The specialist has the right to: 1) get acquainted with the materials of the case of an administrative offense related to the subject of actions committed with his participation; 2) with the permission of the judge, body, official, person presiding at the meeting of the collegiate body, in whose proceedings the case of an administrative offense is located, to ask questions related to the subject of the relevant actions, to the person in respect of whom the proceedings are being conducted, to the victim and witnesses ; 3) to make statements and remarks about the actions performed by him. Statements and remarks shall be recorded in the minutes.
For refusal or for evasion from the performance of duties under Part 2 of Art. 25.8 of the Code of Administrative Offenses of the Russian Federation, the specialist bears administrative responsibility.
Within the meaning of Art. 25.8 of the Code of Administrative Offenses of the Russian Federation, a specialist can be attracted by any body or official in the proceedings of which there is a case of an administrative offense. Among them there are both those subjects of administrative jurisdiction that are not required to have special knowledge, and those that, by their status, should have such knowledge. The first group of subjects should include, in particular, judges. When considering cases of administrative offenses, they often need to use special knowledge, however, as a rule, they do not possess them.
Involvement of a specialist to participate in the proceedings on a case is a right, and not a duty, of a judge, body and official (with the exception of cases of a medical examination for intoxication). The law does not stipulate the right of other participants in the proceedings to involve a specialist, however, the person in respect of whom proceedings are being conducted on an administrative offense case, the victim, defense counsel and representative have the right to file petitions, including for the involvement and hearing of a specialist.
Expert. Any adult who is not interested in the outcome of the case and who has special knowledge in science, technology, art or craft, sufficient to conduct an examination and issue an expert opinion, may be involved as an expert. The expert is obliged to: 1) appear when summoned by the judge, body, official in charge of the administrative case; 2) to give an objective opinion on the questions put to him, as well as the required explanations in connection with the content of the opinion. The expert is warned about administrative responsibility for giving a deliberately false conclusion. The expert has the right to refuse to give an opinion if the questions raised are beyond the scope of his special knowledge or if the materials provided to him are not enough to give an opinion.
The expert has the right to: 1) get acquainted with the materials of the case of an administrative offense related to the subject of the expert examination, make requests for providing him with additional materials necessary for giving an opinion; 2) with the permission of the judge, official, person presiding at the meeting of the collegiate body, in whose proceedings the case of an administrative offense is being carried out, ask questions related to the subject of the examination, to the person in respect of whom proceedings are being conducted in the case of an administrative offense, to the victim and witnesses ; 3) indicate in his opinion the circumstances relevant to the case, which were established during the examination, about which he was not asked questions.
For refusal or for evasion from the performance of duties under Part 2 of Art. 25.9 of the Code of Administrative Offenses of the Russian Federation, the expert bears administrative responsibility.
A person involved as an expert must meet three conditions: 1) be of legal age; 2) have the necessary special knowledge (not related to the field of law), sufficient to conduct an examination and issue an expert opinion, and 3) not be interested in the outcome of the case. The law does not require that expert examination be carried out without fail by employees of state (or other form of ownership) expert organizations; any person who meets the specified requirements may be involved as an expert.
The right of an expert to get acquainted with the materials of the case was limited by the legislator to the subject of expertise, i.e. it extends to familiarization with the objects of research, data on their discovery, seizure, storage, data on the conditions for the course of a certain process, the performance of certain actions, the appearance of certain traces, etc. Outside of these limits, familiarization of the expert with the case materials may lead to doubts about the objectivity of his conclusion.
An expert may submit a request for additional materials both at the time of the announcement of the ruling on the appointment of an expert examination, and during its production. It is necessary that the expert indicate in his application which and for which studies he needs additional materials. In case of refusal to satisfy the petition, the expert must continue the study, and if it is impossible to give an opinion, report it. The notification to the judge, body or official that issued the ruling on the appointment of an expert examination about the impossibility of giving an opinion must contain arguments and information substantiating the position of the expert.
Interpreter. Any adult person who is not interested in the outcome of the case and who knows the languages or skills of sign language translation (understands the signs of the dumb or deaf) necessary for translation or sign language interpretation in the proceedings on an administrative offense may be involved as an interpreter. The interpreter is appointed by the judge, body, official in charge of the administrative offense case.
The interpreter is obliged to appear when summoned by the judge, body, official in charge of the case of an administrative offense, and complete and accurately the translation entrusted to him and certify the correctness of the translation with his signature. The translator is warned about administrative responsibility for knowingly incorrect translation. For refusal or for evasion from the performance of duties under Part 3 of Art. 25.10 of the Code of Administrative Offenses of the Russian Federation, the translator bears administrative responsibility.
Persons who do not understand or poorly understand colloquial speech, cannot speak or read freely in this language, or have difficulty understanding certain terms, are recognized as not fluent in the language in which the proceedings are being conducted. The mute and deaf participants in the proceedings need an interpreter who has the skills of sign language translation, i.e. understanding the signs of the dumb or the deaf. If a person participating in the proceedings applies to the judge for the involvement of an interpreter, because he does not know the language in which the proceedings are conducted, it is necessary to find out which languages this person speaks and in which language he wants to testify, and depending on his answer to decide whether to call an interpreter.
The prosecutor, within the limits of his powers, has the right to: 1) initiate proceedings in a case on an administrative offense; 2) participate in the consideration of a case on an administrative offence, file petitions, give opinions on issues arising during the consideration of the case; 3) file a protest against a decision in a case concerning an administrative offense, regardless of participation in the case, and also perform other actions provided for by federal law. The prosecutor is notified of the place and time of the consideration of the case on an administrative offense committed by a minor, as well as the case on an administrative offense initiated at the initiative of the prosecutor.
Circumstances excluding the possibility of participation in the proceedings on an administrative offense.
Persons are not allowed to participate in the proceedings on an administrative offense case as a defense counsel and a representative if they are employees of state bodies exercising supervision and control over compliance with the rules, the violation of which was the basis for initiating this case, or if they have previously acted in as other participants in the proceedings in this case.
Persons are not allowed to participate in the proceedings on an administrative offense case as a specialist, expert and translator if they are related to a person held administratively liable, to a victim, their legal representatives, defense counsel, representative, prosecutor, judge, a member of a collegial body or an official who is in charge of this case, or if they previously acted as other participants in the proceedings in this case, as well as if there are grounds to consider these persons personally, directly or indirectly, interested in the outcome of this case.
The legislator does not indicate in Art. 25.12 of the Code of Administrative Offenses of the Russian Federation, which should be understood as family relations. In Art. 25.6 of the Code of Administrative Offenses of the Russian Federation, close relatives are determined. These are parents, children, adoptive parents, adopted children, siblings, grandfather, grandmother, grandchildren. Although this list for the provisions of Art. 25.12 of the Code of Administrative Offenses of the Russian Federation, of course, is not exhaustive, apparently, there is no need for its excessive expansion. The fact is that in any situation, no person can be admitted to participate in the proceedings if there are grounds to consider him directly or indirectly interested in the outcome of this case.
Recusals of persons whose participation in the proceedings on an administrative offense is not allowed.
In the presence of the provisions of Art. 25.12 of the Code of Administrative Offenses of the Russian Federation in circumstances excluding the possibility of a person's participation as a defense counsel, representative, specialist, expert or interpreter in the proceedings on an administrative offense, the said person is subject to challenge. An application for self-withdrawal or recusal shall be submitted to the judge, body, official in charge of the administrative offense case. Having considered an application for self-withdrawal or recusal, the judge, body, official, in whose proceedings the case of an administrative offense is located, shall issue a ruling to satisfy the application or to refuse to satisfy it.
According to Art. 21 of the Arbitration Procedure Code of the Russian Federation, there are a number of grounds when a judge cannot participate in the consideration of a case and is subject to challenge.
Reimbursement of expenses to the victim, witness, specialist, expert, translator and witness. The victim, witness, specialist, expert, translator and witness shall be compensated, in accordance with the procedure established by the Government of the Russian Federation, for the expenses incurred by them in connection with their appearance in court, body, official, in whose proceedings the case of an administrative offense is being carried out. The work of a specialist, expert and translator is paid in accordance with the procedure established by the Government of the Russian Federation.
Issues related to the reimbursement of expenses of the victim, witness, specialist, expert, interpreter, attesting witness in connection with their appearance on summons to the court, body, official, in the proceedings of which the case of an administrative offense is in progress, as well as the procedure for remuneration of specialists, experts and translators involved in the implementation of procedural actions in cases of administrative offenses are regulated by a special Regulation approved by Decree of the Government of the Russian Federation of March 4, 2003 N 140 "On the procedure and amount of reimbursement of expenses of some participants in proceedings in cases of administrative violations and payment for them labor".
In accordance with this Regulation, the said participants in the proceedings on the case of an administrative offense are entitled to reimbursement of the expenses incurred by them related to the summons to the court, body, official, in whose proceedings the case is being carried out. Expenses include travel, accommodation and per diems. At the same time, the maximum values of the amounts payable are determined. Specialists, experts and translators also receive monetary remuneration for work performed by them on behalf of a court, body, official (except when this work is part of their official duties or when it is performed by them as an official task), in accordance with the norms established by the Ministry of Labor of Russia.
Payments are also made in cases where the procedural actions for which the person was called were not performed due to circumstances beyond the control of this person.
§ 3. Application of measures to secure proceedings
on administrative offenses
In order to suppress an administrative offense, identify the offender, draw up a protocol on an administrative offense if it is impossible to draw it up at the place where the administrative offense was detected, ensure timely and correct consideration of the case on an administrative offense and the execution of the decision adopted in the case, the authorized person has the right to apply the following measures within his powers ensuring proceedings in a case on an administrative offense: 1) delivery; 2) administrative detention; 3) personal inspection, inspection of things that are with an individual; 4) inspection of the premises, territories belonging to the legal entity and the things and documents located there; 5) inspection of the vehicle; 6) seizure of things and documents; 7) suspension from driving a vehicle of the corresponding type; 8) medical examination for intoxication; 9) detention of the vehicle, prohibition of its operation; 10) seizure of goods, Vehicle and other things; 11) drive.
Damage caused by the illegal application of measures to ensure the proceedings in a case of an administrative offense is subject to compensation in the manner prescribed by civil law.
Article 28.1 of the Code of Administrative Offenses of the Russian Federation determines that an administrative offense case is considered to be initiated, including from the moment the first protocol on the application of any of the measures provided for in this article to ensure the proceedings in the case is drawn up. At the same time, in the case of applying such a measure as administrative detention of an individual, the defense counsel is allowed to participate in the proceedings from the moment of administrative detention.
Delivery, i.e. forcible transfer of an individual for the purpose of drawing up a protocol on an administrative offense if it is impossible to draw it up at the place where an administrative offense was detected (if drawing up a protocol is mandatory), is carried out depending on the nature of the offense committed officials listed in Art. 27.2 of the Code of Administrative Offenses of the Russian Federation. Delivery must be made as soon as possible. A protocol is drawn up on the delivery or a corresponding entry is made in the protocol on an administrative offense or in the protocol on administrative detention.
Administrative detention, i.e. short-term restriction of freedom of an individual may be applied in exceptional cases, if it is necessary to ensure the correct and timely consideration of a case on an administrative offense, the execution of a decision on a case on an administrative offense. Administrative detention is carried out depending on the nature of the offense committed by the officials listed in Art. 27.3 of the Code of Administrative Offenses of the Russian Federation. At the request of the detainee, relatives, the administration at the place of his work (study), as well as the defense counsel are notified of his whereabouts as soon as possible. The parents or other legal representatives of a minor must be notified about the administrative detention of a minor.
A protocol is drawn up on administrative detention, which indicates the date and place of its compilation, position, surname and initials of the person who drew up the protocol, information about the detained person, time, place and motives for detention. The record of administrative detention is signed by the official who drew it up and by the detainee. If the detainee refuses to sign the protocol, an appropriate entry is made in the administrative detention protocol.
The period of administrative detention general case should not exceed three hours. However, a person in respect of whom proceedings are being conducted in a case of an administrative offense infringing on the established regime of the State Border of the Russian Federation and the procedure for staying on the territory of the Russian Federation, on an administrative offense committed in internal sea waters, in the territorial sea, on the continental shelf, in the exclusive economic zone of the Russian Federation, or on violation of customs rules, if necessary, to establish the identity or to clarify the circumstances of an administrative offense, may be subjected to administrative detention for a period not exceeding 48 hours. A person who is being prosecuted in a case of an administrative offense that entails administrative arrest as one of the measures of administrative punishment may also be subjected to administrative detention for a period not exceeding 48 hours.
The term of administrative detention of a person is calculated from the moment of delivery in accordance with Art. 27.2 of the Code of Administrative Offenses of the Russian Federation, and a person who is in a state of intoxication - from the time of his sobering up.
The term of administrative detention is included in the term of administrative arrest.
Detainees are kept in specially designated premises of the bodies specified in Art. 27.3 of the Code of Administrative Offenses of the Russian Federation, or in special institutions created in the prescribed manner by the executive authorities of the constituent entities of the Federation. These premises must meet sanitary requirements and exclude the possibility of their unauthorized abandonment. The conditions of detention of detainees, food standards and the procedure for medical care for such persons are determined by the Government of the Russian Federation. Minors subject to administrative detention are held separately from adults.
Personal search, search of things that are with an individual, i.e. inspection of things, carried out without violating their constructive integrity, is carried out, if necessary, in order to detect the instruments of committing or objects of an administrative offense. Personal search, search of things that are with an individual, are carried out by officials specified in Art. 27.2 and 27.3 of the Code of Administrative Offenses of the Russian Federation.
Personal
For violation of the requirements of technical regulations, the manufacturer (executor, seller, person performing the functions of a foreign manufacturer) is liable in accordance with the legislation of the Russian Federation.
If, as a result of non-compliance of products with the requirements of technical regulations, violations of the requirements of technical regulations in the implementation of the processes of production, operation, storage, transportation, sale and disposal, harm has been caused to the life or health of citizens, property of individuals or legal entities, state or municipal property, the environment , life or health of animals and plants or there is a threat of causing such harm, the manufacturer (performer, seller, person performing the functions of a foreign manufacturer) is obliged to compensate for the harm caused and take measures to prevent harm to other persons, their property, the environment in accordance with the legislation of the Russian Federation. The obligation to compensate for harm cannot be limited by an agreement or a statement by one of the parties. Agreements or disclaimers are void.
The manufacturer (performer, seller, person performing the functions of a foreign manufacturer), who became aware of the non-compliance of the products released into circulation with the requirements of technical regulations, is obliged to report this to the state control (supervision) body in accordance with its competence within ten days from the date of receipt the specified information. The seller (executor, person performing the functions of a foreign manufacturer) who has received the specified information is obliged to bring it to the manufacturer within ten days. A person who is not a manufacturer (executor, seller, person performing the functions of a foreign manufacturer) and who has become aware of the non-compliance of products released into circulation with the requirements of technical regulations, has the right to send information about the non-compliance of products with the requirements of technical regulations to the state control (supervision) body. Upon receipt of such information, the state control (supervision) body is obliged to notify the manufacturer (seller, person performing the functions of a foreign manufacturer) of its receipt within five days. Within ten days from the date of receipt of information about non-compliance of products with the requirements of technical regulations, if the need to establish a longer period does not follow from the essence of the measures taken, the manufacturer (seller, person performing the functions of a foreign manufacturer) is obliged to verify the accuracy of the information received. At the request of the state control (supervision) body, the manufacturer (seller, person performing the functions of a foreign manufacturer) is obliged to submit the materials of the said inspection to the state control (supervision) body.
In the event of receipt of information about non-compliance of products with the requirements of technical regulations, the manufacturer (seller, person performing the functions of a foreign manufacturer) is obliged to take the necessary measures so that before the completion of the check, the possible harm associated with the circulation of this product does not increase. When confirming the accuracy of information about non-compliance of products with the requirements of technical regulations, the manufacturer (seller, person performing the functions of a foreign manufacturer), within ten days from the date of confirmation of the accuracy of such information, is obliged to develop a program of measures to prevent harm and coordinate it with the state control (supervision) body in according to his competence. The program should include measures to notify purchasers of the presence of a threat of harm and ways to prevent it, as well as the timing of the implementation of such measures. If it is necessary to incur additional costs to prevent damage, the manufacturer (seller, person acting as a foreign manufacturer) is obliged to take all measures to prevent damage on its own, and if it is impossible to implement them, announce a recall of the products and compensate for the losses caused to the purchasers due to a product recall. Elimination of deficiencies, as well as delivery of products to the place of elimination of deficiencies and return to purchasers are carried out by the manufacturer (seller, person performing the functions of a foreign manufacturer) and at his expense.
If the threat of harm cannot be eliminated, the manufacturer (seller, person acting as a foreign manufacturer) is obliged to immediately suspend the production and sale of products, recall the products and compensate the buyers for losses incurred in connection with the recall of the products. In case of non-compliance with the instructions or non-compliance with the program of measures to prevent causing harm, the state control (supervision) body in accordance with its competence, as well as other persons who became aware of the failure by the manufacturer (seller, person performing the functions of a foreign manufacturer) of the program of measures to prevent causing harm, has the right to apply to the court with a claim for a forced recall of products. If the claim for compulsory recall of products is satisfied, the court obliges the defendant to take certain actions related to the recall of products within the time period established by the court, as well as to bring the court decision no later than one month from the date of its entry into legal force to the attention of the purchasers through the funds mass media or otherwise. If the defendant fails to execute the court decision within the prescribed period, the plaintiff has the right to perform these actions at the expense of the defendant with the recovery of the necessary expenses from him. For violation of the requirements of the law on product recall, criminal and administrative measures may be applied in accordance with the legislation of the Russian Federation. When exercising state supervision over compliance with the mandatory requirements of state standards and over certified products (services), state inspectors for the supervision of state standards of the territorial bodies of the State Standard, on the basis of acts of inspection of enterprises, take measures aimed at suppressing, eliminating and preventing violations and the causes that caused them. To this end, in accordance with PR 50.1.007, they issue prescriptions to violators and impose penalties for violating the mandatory requirements of standards, certification rules and non-compliance with prescriptions.
The instructions may be as follows:
- 1) on the elimination of identified violations of mandatory requirements, in particular safety requirements (when violations can be eliminated). For evasion or late execution, fines are applied in the amount of up to 5,000 minimum wages (hereinafter referred to as the minimum wage);
- 2) on the suspension of the sale of manufactured products, the provision of services in the event of their non-compliance with the mandatory requirements of state standards. For evasion of execution, a fine is applied in the amount of the cost of products (services) sold or in the amount of up to 10 thousand rubles;
- 3) on the termination of the release (when the causes of harm to products cannot be eliminated) and the sale of dangerous goods. For evasion of execution, a fine of up to 5,000 minimum wages is applied;
- 4) on recall of dangerous goods from consumers. For failure to comply with the order or causing damage to these goods, a fine of up to 5,000 minimum wages is imposed.
For violation of the rules of mandatory certification of goods (works, services), fines are imposed on certification bodies (CB) in the amount of twice the cost of the relevant goods (works, services). Violation of the rules may result in the unreasonable issuance of a certificate of conformity:
with negative test results;
if the compliance of goods (works, services) with the requirements of the standards is not proven (for example, the test program was not observed, the tests were not carried out according to all safety requirements);
when the certificate of conformity is issued for goods (works, services) that are not included in the scope of accreditation of the certification body;
when the certificate of conformity is issued by the certification body after the expiration of its accreditation certificate, its suspension or cancellation.
Fines are imposed on testing laboratories (TL) and centers in the amount of twice the cost of the relevant goods (works, services) for providing unreliable test results for goods (works, services) during their mandatory certification.
Cases on the imposition of fines are considered with the participation of representatives of the subject economic activity, manufacturer (executor, seller), OS, IL, others stakeholders within 15 days from the date of receipt of the inspection certificate.
The Law of the Russian Federation "On Certification of Products and Services" states that legal entities and individuals, as well as federal executive authorities guilty of violating mandatory certification, in accordance with applicable law, bear criminal, administrative or civil liability. In the Law of the Russian Federation " On Standardization” also provides for criminal, administrative and civil liability for violation of the provisions of the law, in particular for non-compliance with the mandatory requirements of state standards.
In accordance with Art. 170 of the Code of Administrative Offenses of the RSFSR, officials or citizens registered as individual entrepreneurs are fined from 5 to 100 minimum wages for violation of the mandatory requirements of state standards, rules for mandatory certification. At the same time, such actions are qualified as violations of the rules of mandatory certification, such as:
sale of certified products that do not meet the requirements ND,
for which it is certified;
sale of certified products without a certificate of conformity or without specifying in the accompanying technical documentation information about certification or normative documents to which the specified products must comply; or failure to communicate this information to the consumer (buyer, customer);
Formation and implementation of state policy in the field of certification, establishment general rules and recommendations for certification on the territory of the Russian Federation are the functions of Gosstandart. He also conducts state registration certification systems and marks of conformity, leads them State Register, publishes official information on certification, on existing certification systems and marks of conformity, performs a number of functions.
Gosstandart, in addition to playing the role of a national certification body, organizes and conducts work on mandatory certification.
In accordance with the Law of the Russian Federation "On Standardization", regulatory documents for products and services subject to mandatory certification in accordance with the legislation must contain requirements for which mandatory certification is carried out, methods of monitoring compliance with these requirements, rules for labeling products and services, information requirements about the certification included in the accompanying documentation.
The requirements established by state standards to ensure the safety of products, works and services for the environment, life, health and property, to ensure technical and information compatibility, interchangeability of products, uniformity of control methods and uniformity of labeling, as well as other requirements established by the laws of the Russian Federation, are binding government bodies management, business entities. Compliance of products and services with the specified requirements of state standards is determined in accordance with the procedure established by the legislation of the Russian Federation on mandatory certification of products and services.
Mandatory certification is carried out for the list of products approved by the Government of the Russian Federation.
Manufacturers and sellers of products subject to mandatory certification and sold on the territory of the Russian Federation are obliged to:
1. Sell these products only if there is a certificate of conformity issued or recognized by an authorized body, or a declaration of conformity adopted in the prescribed manner.
2. Ensure that the products being sold comply with the requirements of the regulatory documents for which they were certified, and label them with the mark of conformity in the prescribed manner.
3. Indicate in the accompanying technical documentation information about the certificate or declaration of conformity and regulatory documents that the product must comply with, and ensure that this information is communicated to the consumer.
4. Suspend or terminate the sale of products if they do not meet the requirements of regulatory documents, after the expiration of the certificate or the expiration date of the product, as well as if the certificate is suspended or canceled by the decision of the certification body.
5. Ensure the unhindered exercise of their powers by officials of bodies that carry out mandatory certification of products and control over certified products.
6. Notify the certification body of changes made to technical documentation or in the process.
Individuals and legal entities, as well as federal executive authorities guilty of violating the rules of mandatory certification, bear criminal, administrative or civil liability in accordance with the law.
Gosstandart of Russia, represented by its authorized representatives, has the right to issue the following orders:
1. On the elimination of identified violations of the mandatory requirements of state standards in the development, production, sale, storage, transportation and disposal of products (issued if this elimination is possible).
2. On the elimination of violations of the requirements for the safety of goods (same).
3. On the suspension of the sale, use of manufactured products, performance of work, provision of services in cases of non-compliance with their mandatory requirements of standards (if they can be eliminated).
4. On the suspension of sales in the absence of reliable and sufficient information about the goods (until the violations of the information requirement are eliminated).
5. On the prohibition of the sale of tested products in cases of product non-compliance with the requirements (valid until the non-compliance is eliminated).
7. On the prohibition of the sale of products in case of evasion of the manufacturer (seller) from presenting the products for verification.
8. On the termination of the release and sale of dangerous goods.
9. On the termination of the sale of goods with expired shelf life.
10. On the removal from production of dangerous goods.
11. On the recall of dangerous goods from consumers.
Fines are imposed on organizations, business entities:
1. For violations of regulations.
2. For evasion or untimely execution of orders.
3. For causing damage to consumers by goods.
4. For the sale of goods without certificates (if they are required).
5. For violation of the rules of mandatory certification.
6. For providing false test results.
The amount of fines in each particular case is determined in accordance with the laws and the amount of damage caused.
In foreign practice, the requirements of the standards are mandatory for implementation in accordance with the general law or if this standard has a mandatory reference in the technical regulation or in the Directive.
This is due to the subsequent revision of the standard: it will be valid only after changes are made to the regulations;
A link with a rolling identity, i.e. the standard(s) are identified (indicated in the regulations) only with the help of a number. This makes it possible to revise the standard and put it into effect regardless of changes to the regulations;
General reference, i.e. indication in the regulations of all standards, which operate within a certain area and (or) adopted by a specific body. There is no identification of each standard separately.
Responsibility exists for violation of the standard to which there is a mandatory reference. This reference indicates that compliance with the standards (standard) identified in it is the only way to achieve product compliance with the requirements of the technical regulation.
The technical regulation may include an indicative reference. This kind of reference to a standard is essentially a form of provision aimed at achieving conformity. In other words, compliance with the standards contained in these references is considered as one of the ways to achieve compliance with the requirements of the regulation.
According to the Law of the Russian Federation "On Technical Regulation", liability for violation of its provisions is borne by legal entities and individuals, bodies government controlled. In accordance with the legislation in force in Russia, liability is of a criminal, administrative or civil law nature. Violations are detected by the services of state control and supervision over compliance by business entities with the mandatory requirements of state standards.
Violation by officials or citizens who are registered as individual entrepreneurs of the mandatory requirements of state standards in the sale, operation, transportation and storage of products entails a fine in the amount of from five to 100 times the minimum wage. The same punishment is determined for the evasion of legal and individuals from the presentation of products, as well as information about it and relevant documentation to state supervision bodies.
Since January 1, 1997, special criminal liability has been established for deceiving consumers in relation to the quality of goods established by the contract (in the areas of trade in goods and the provision of services), as well as for the production and sale of goods and services that do not meet safety requirements. Criminal liability for violation of product standards requirements industrial purpose is not provided, and administrative responsibility is established for non-compliance with mandatory requirements during its sale (delivery), use, transportation and storage. Civil liability for violation of quality requirements is determined on the basis of the provisions of civil law.
CONCLUSION
Based on all the material that was presented in the main part, we can say that the tasks were completed, but the topic of this essay was not fully disclosed due to the complexity of the object under study.
The method and methodology of the study contributed to the disclosure of the topic, but for a more accurate study, the amount of scientific and methodological literature should be increased.
Only a part of the subjects included in the topic was singled out, which led to an incomplete analysis and inaccurate fulfillment of the goal.
The structure of the abstract corresponds to the purpose and objectives of the study.
The object of study should be studied in more detail, taking into account all aspects and characteristics.
LIST OF USED SOURCES AND LITERATURE
1. Dimov Yu.V. Metrology, standardization and certification. St. Petersburg: Peter, 2nd edition, 2004-432 p.
2. Krylova GD Fundamentals of standardization, certification, metrology. M.: UNITY-DANA, 3rd edition, 1999-340 p.
3. Alekseev V. S., Belova L. A. Metrology, standardization and certification. Crib. M.: LitRes, 2009-32 p. http://allformgsu.ru/
In foreign practice, the requirements of the standards are mandatory for implementation in accordance with the general law or if this standard has a mandatory reference in the technical regulation or in the Directive.
| a link with a solid identification, i.e. an indication of the number, date of publication and edition number of a specific standard (or several specific standards). This is due to the subsequent revision of the standard: it will be valid only after changes are made to the regulations; | |
| link with rolling identification, i.e. the standard(s) are identified (indicated in the regulations) only by means of a number. This makes it possible to revise the standard and put it into effect regardless of changes to the regulations; | |
| general reference, i.e. an indication in the regulations of all standards that are in force in a certain area and (or) adopted by a specific body. There is no identification of each standard separately. |
Responsibility exists for violation of the standard to which there is a mandatory reference. This reference indicates that compliance with the standards (standard) identified in it is the only way to achieve product compliance with the requirements of the technical regulation.
Technical regulation may include an indicative link. This kind of reference to a standard is essentially a form of provision aimed at achieving conformity. In other words, compliance with the standards contained in these references is considered as one of the ways to achieve compliance with the requirements of the regulation.
According to the Law of the Russian Federation "On Standardization", legal and natural persons, government bodies are liable for violation of its provisions. In accordance with the legislation in force in Russia, liability is of a criminal, administrative or civil law nature. Violations are detected by the services of state control and supervision over compliance by business entities with the mandatory requirements of state standards.
Violation by officials or citizens who are registered as individual entrepreneurs of the mandatory requirements of state standards in the sale, operation, transportation and storage of products entails a fine in the amount of from five to 100 times the minimum wage. The same punishment is determined for the evasion of legal entities and individuals from presenting products, as well as information about it and relevant documentation to state supervision bodies.
Since January 1, 1997, special criminal liability has been established for deceiving consumers in relation to the quality of goods established by the contract (in the areas of trade in goods and the provision of services), as well as for the production and sale of goods and services that do not meet safety requirements. Criminal liability for violation of the requirements of standards for industrial products is not provided, and administrative liability is established for non-compliance with mandatory requirements during its sale (supply), use, transportation and storage. Civil liability for violation of quality requirements is determined on the basis of the provisions of civil law.
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