Responsibility of manufacturers, certification bodies, testing laboratories (centers) and their officials for violation mandatory requirements to products (goods) is established by the Civil Code Russian Federation, the Code of the Russian Federation on Administrative Offenses, the Criminal Code of the Russian Federation and other legislative acts. The Federal Law "On Technical Regulation", enacted on July 1, 2003, provided for a number of elements of offenses for which the said bodies and officials should be held liable in accordance with the said legislative acts.
So, in Art. 36 federal law"On Technical Regulation" (hereinafter - the Federal Law) establishes the responsibility of the manufacturer (executor, seller, person performing the functions of a foreign manufacturer) for violation and, in particular, for the following offenses: "if, as a result of non-compliance of products with the requirements of technical regulations, violations of the requirements of technical regulations during 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, the life or health of animals and plants, the manufacturer (performer, seller, person performing the functions of a foreign manufacturer) is obliged to compensate for the harm caused in accordance with the legislation of the Russian Federation.
The Federal Law also establishes offenses for the commission of which, in accordance with the legislation of the Russian Federation and the contract, liability of certification bodies and their officials is provided for in case of non-compliance with the rules for performing certification work, if this entailed the release into circulation of products that do not comply requirements of technical regulations, and accredited testing laboratories (centers), experts for the unreliability or bias of the presented results of research (tests) and measurements (Art. 41, 42).
Thus, the responsibility of manufacturers, certification bodies, testing laboratories (centers) and their officials for offenses under Art. 36, 41, 42, Federal law associates with violations requirements of technical regulations and the onset of these violations of the consequences. In addition, the Federal Law provides for new offenses for which the current legislation does not contain specific legal measures.
These circumstances are an obstacle to the application of the Federal Law in full, since technical regulations have not yet been adopted (according to paragraph 7 of Article 46 they must be adopted within 7 years from the date of entry into force of the Federal Law) and the necessary changes and additions have not been made to the relevant legislative acts. For example, the Code of Administrative Offenses of the Russian Federation provides for administrative liability for violations, and not for violations requirements of technical regulations as stated in federal law.
New provisions introduced into the Federal Law, for example, on compensation by the manufacturer for damage caused life or health of animals and plants due to violations of the requirements of technical regulations (Article 36), on the responsibility of certification bodies and their officials for violation of the rules for certification, if they entailed the release into circulation of products that do not meet the requirements of technical regulations (Article 41), or liability experts(Article 42) have not yet been included in the relevant legislative acts providing for specific measures of legal influence, and, therefore, the Federal Law does not work in this part.
Until the necessary changes and additions are made to the legislative acts providing for punishment, and the adoption of technical regulations in the transition period established by Art. 46 of the Federal Law, manufacturers, mandatory certification bodies, testing laboratories (centers) and their officials must be held liable for violations mandatory requirements of state standards in accordance with the current civil, administrative and criminal legislation of the Russian Federation.
Civil Liability
The civil liability of the manufacturer, seller, performer is provided for by the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the Law of the Russian Federation "On the Protection of Consumer Rights" (hereinafter referred to as the Law) and other legislative acts of the Russian Federation and is expressed in the application by the court to the offender in the interests of victim of measures established by civil law or contract. As a rule, these measures are of a property nature - compensation for harm, losses, payment of penalties, penalties, fines.Along with general issues of compensation for harm, Section 3 of Chapter 59 of the Civil Code of the Russian Federation specifically provides for compensation for damage caused due to defects in goods, work, services.
So, in part 1 of Art. 1095 of the Civil Code of the Russian Federation established: "Harm caused to life, health or property of a citizen or property legal entity due to design, prescription or other defects in the product, work or service, as well as due to inaccurate or insufficient information about the product (work, service), is subject to compensation by the seller or manufacturer of the product, the person who performed the work or provided the service (performer), regardless of their fault and on whether the victim was in a contractual relationship with him or not.
This legal provision has further development in paragraph 1 of Art. 14 of the Law of the Russian Federation "On Protection of Consumer Rights", according to which harm caused to the life, health or property of the consumer due to design, production, prescription or other defects in the goods (work, service) is subject to compensation in full.
Harm to the life, health or property of the consumer can be caused, for example, by goods released by the manufacturer into circulation on the market in violation of the mandatory requirements of state standards, the rules for mandatory certification provided for in parts 1 and 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation (see section 2).
Art. 1096 of the Civil Code of the Russian Federation specifies the persons responsible for the harm caused due to defects in goods, work, services. If in Art. 1095 of the Civil Code of the Russian Federation provides that the damage is subject to compensation by the seller or manufacturer of the goods, then in Art. 1096 of the Civil Code of the Russian Federation states that the specified damage is compensated by the seller or manufacturer at the choice of the victim, i.e. the victim has the right to bring a claim for compensation for harm to him at his own discretion against the seller or manufacturer.
As can be seen from the above provisions, the responsibility of the manufacturer, seller, performer occurs in the presence of a shortage in the product, in the work performed, the service rendered and the harm caused by this.
Lack of goods (work, services) as one of the grounds for liability may be of a production, design, prescription or other nature, which is the result of a violation by the manufacturer, seller, performer of the requirements for the quality and safety of goods (work, services), or in the provision of incomplete or inaccurate information about them.
The obligation of the seller (executor) to transfer the goods to the buyer (perform work, provide a service) good quality, the necessary and reliable information about the product, work, service is established by Art. 469, 495 of the Civil Code of the Russian Federation, Art. 4:10 Law.
Harm, as the second important basis of liability, is damage, caused to the personality of a citizen due to loss of health or injury, or death of the breadwinner, as well as damage caused to the property of a citizen or legal entity due to its damage, destruction, damage, etc.
It should be borne in mind that liability under Art. 1095 of the Civil Code of the Russian Federation is coming, if the harm is in a causal relationship with the shortcomings goods (works, services), i.e. is a consequence of a violation of the requirements for the quality and safety of a product, work, service or insufficient, inaccurate information about them.
Unlike general rule established by Art. 1064 of the Civil Code of the Russian Federation, according to which the person who caused harm is exempted from compensation for harm if he proves that the harm was caused through no fault of his, Art. 1095 of the Civil Code of the Russian Federation provides for the liability of the manufacturer, seller or performer, regardless of fault, i.e. both in the presence of guilt and in its absence.
The right to demand compensation for harm is recognized for any consumer, regardless of whether he was in a contractual relationship with the seller (performer) or not (clause 2, article 14 of the Law). Therefore, not only the buyer of the goods, but also another person can claim compensation for damage. For example, not only the buyer, but also relatives and neighbors were harmed from the fire of a TV set, and, therefore, the buyer himself, his relatives, neighbors and other persons who suffered damage have the right to demand compensation for damage.
It should be noted that according to Part 2 of Art. 1095 of the Civil Code of the Russian Federation, the rules provided for in part 1 of this article apply only in cases of the acquisition of goods (performance of work or provision of services) for consumer purposes, and not for use in business activities. The action of the specified article on compensation for damage caused to property also applies to legal entities only if they used the goods (results of work, services) not in accordance with business purposes, but, for example, for the purposes of cultural, community and other services for employees of a legal entity.
Compensation for harm caused in connection with entrepreneurial activity is carried out on the general basis established by Sections 1 and 2 of Chapter 59 of the Civil Code of the Russian Federation.
Damage caused to the life, health or property of the consumer is subject to compensation if it is caused within the established service life, shelf life of goods (work).
According to paragraph 2 of Art. 5 of the Law, the manufacturer (executor) is obliged to establish the service life of the goods (work), which, upon expiration certain period may pose a danger to the life, health of the consumer, harm his property or the environment.
Best before date is established on foodstuffs, medicines, perfumes and cosmetics, household chemicals and other goods that are completely consumed during use, and life time installed on goods intended for durable use (washing machines, televisions, refrigerators, etc.), including components (parts, assemblies, assemblies, etc.).
If the manufacturer (executor) has not established a service life for the goods (work), the damage is subject to compensation in case of its infliction. within ten years from the date of transfer of the goods (work) to the consumer, and if the date of transfer cannot be determined - from the date of manufacture of the goods (completion of the work performed) (clause 3, article 14 of the Law).
Sale of goods(completing of the work) after the expiration date, as well as goods (performance of work), for which an expiration date should be set, but not set, prohibited(Clause 5, Article 5 of the Law).
It is also determined that if a product (results of work) should have a service life or shelf life, but it has not been established, or the consumer has not been provided with complete and reliable information about the service life or shelf life, if the consumer has not been informed about necessary actions after the expiration of the service life or expiration date and possible consequences if the specified actions are not performed, or the product (result of work) after the expiration of these periods poses a danger to life and health, the damage is subject to compensation regardless of the time of its infliction (clause 3, article 14 of the Law, art. 1097 of the Civil Code of the Russian Federation).
The civil legislation of the Russian Federation also protects the interests of the manufacturer, seller, performer. According to Art. 1098 of the Civil Code of the Russian Federation and paragraph 5 of Art. 14 of the Law, the seller or manufacturer of goods, performer of work or service is released from liability if he proves that the harm arose as a result of force majeure or violation by the consumer of the established rules for using the goods, results of work, services or their storage.
TO force majeure refers to an emergency and unavoidable event under given conditions (natural disaster: for example, flood, earthquake, etc.) (Legal Encyclopedic Dictionary, Moscow, 1996).
The law establishes judicial protection of consumer rights. It is provided that the protection of consumer rights is carried out by the court. Claims are filed in court at the place of residence of the plaintiff or at the location of the defendant, or at the place of infliction of harm.
Consumers in claims related to violation of their rights, as well as the federal antimonopoly authority, federal authorities executive power(their territorial bodies) exercising control over the quality and safety of goods (works, services), bodies local government, public associations of consumers (their associations, unions) on claims brought in the interests of a consumer, a group of consumers, an indefinite circle of consumers, are exempt from paying state fees (Article 17 of the Law).
It should be borne in mind that the participants in relations regulated by civil law are citizens and legal entities (Article 2 of the Civil Code of the Russian Federation). General provisions on the contract (the procedure for concluding and terminating it) are provided for by Chapters 27-29 of the Civil Code of the Russian Federation.
Administrative responsibility
Administrative responsibility is established by the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses). The Code of Administrative Offenses regulates relations in the field of protecting the health and safety of citizens, environment, sanitary and epidemiological welfare of the population, protection of state, public security, morality and establishes the responsibility of citizens, officials, individual entrepreneurs, legal entities for administrative offenses committed in various fields activities, branches of economy and management.A measure of responsibility - an administrative penalty established by a specific article of the Code of Administrative Offenses, can be applied by an official of the body authorized to consider cases of administrative offenses, on the basis of a protocol on administrative offense drawn up by an authorized official.
The right to draw up protocols on administrative offenses under Art. 19.19, part 1 of Art. 19.4, part 1 of Art. 19.5, Art. 19.6, 19.7, 17.7, 17.9, part 2, 3 art. 14.1, Art. 19.20 of the Code of Administrative Offenses, part 1, part 2, paragraph 66 and part 3 of Art. 28.3 of the Code of Administrative Offenses to authorized officials of the State Standard of Russia, the assignee of which is the Federal Agency for Technical Regulation and Metrology (hereinafter referred to as the Agency). According to paragraph 6 of the Decree of the Government of the Russian Federation of June 17, 2004 294, the said Agency licenses activities for the manufacture and repair of measuring instruments, functions for state, metrological control and supervision until changes are made to legislative acts and exercises control and supervision over compliance with the mandatory requirements of state standards and technical regulations until the Government of the Russian Federation makes a decision to transfer these functions to other federal executive bodies. The procedure for drawing up a protocol on an administrative offense is set out in Art. 28.2 of the Code of Administrative Offenses.
Order of the State Standard of Russia dated September 26, 2002 213 (registered with the Ministry of Justice of Russia on October 7, 2002, registration 3836) in accordance with Part 4 of Art. 28.3 of the Code of Administrative Offenses approved the list of officials of the Gosstandart of Russia authorized to draw up protocols on administrative offenses ("Rossiyskaya Gazeta" dated October 16, 2002 196).
Administrative responsibility of officials and legal entities for violation of the mandatory requirements of state standards, mandatory certification rules, requirements normative documents to ensure the uniformity of measurements provided for by Art. 19.19 of the Code of Administrative Offenses, which contains three parts.
Part 1 Art. 19.19 of the Code of Administrative Offenses establishes administrative liability for violation of the mandatory requirements of state standards in the implementation (supply, sale), use (operation), storage, transportation or disposal of products, as well as for evading the presentation of products, documents or information necessary for state control and supervision . For the listed offenses, an administrative fine is imposed on officials in the amount of five to ten; for legal entities - fifty to one hundredminimum dimensions wages with confiscation of objects of an administrative offense.
Administrative liability for violation of the mandatory requirements of state standards is also provided for in Art. 6.14, 8.23, 9.4, part 1 of Art. 12.2, part 2 of Art. 13.4, Art. 13.8, part 1 of Art. 14.4, Art. 20.4 of the Code of Administrative Offenses, however, officials of the State Standard of Russia (the Agency) are not given the right to draw up protocols on administrative offenses provided for by these articles. According to these offenses, officials of other departments have the right to draw up protocols, and therefore, from the offenses of Part 1 of Art. 19.19 of the Code of Administrative Offenses, the listed articles are excluded.
Part 2 Art. 19.19 of the Code of Administrative Offenses establishes administrative liability for violation of the rules of mandatory certification, i.e. for the sale of certified products that do not meet the requirements of regulatory documents for which they are certified, or for the sale of certified products without a certificate of conformity (declaration of conformity), or without a mark of conformity, or without indication in the accompanying technical documentation information about certification or regulatory documents that the specified products must comply with, or for not communicating this information to the consumer (buyer, customer), as well as for providing false product test results or for unjustified issuance of a certificate of conformity (declaration of conformity) for products, subject to mandatory certification.
For these offenses, an administrative fine is imposed on officials in the amount of ten to twenty the minimum wage with confiscation of objects of an administrative offense; for legal entities - two hundred to three hundred the minimum wage with confiscation of objects of an administrative offense.
Administrative liability for violation of the rules of mandatory certification is also provided for in Art. 13.6, parts 2 and 4 of Art. 13.12, part 2 of Art. 14.4, part 2 of Art. 14.16, Art. 20.4, 20.14 of the Code of Administrative Offenses, however, officials of the Gosstandart of Russia (the Agency) are not given the right to draw up protocols on these administrative offenses, officials of other departments are entitled to draw them up, and therefore these offenses from Part 2 of Art. 19.19 of the Code of Administrative Offenses are excluded.
Authorized officials of the State Standard of Russia (Agency) drawn up protocols on administrative offenses under Parts 2 and 3 of Art. 14.1, parts 1 and 2 of Art. 19.19 of the Code of Administrative Offenses, should send: in relation to citizens and officials, in accordance with Part 1 of Art. 23.1 of the Code of Administrative Offenses, the relevant magistrate, and in relation to legal entities or individual entrepreneurs, in accordance with Part 3 of Art. 23.1 of the Code of Administrative Offenses, - to the appropriate judge of the arbitration court to consider cases of administrative offenses.
It must be borne in mind that legal entities in this case include manufacturers and sellers of products, performers of work, services, which may also be individual entrepreneurs.
The subject of an administrative offense may be, for example, certified products that do not meet the requirements of regulatory documents for which they are certified.
Part 3 Art. 19.19 of the Code of Administrative Offenses establishes administrative liability for violation of the rules for verifying measuring instruments, the requirements of certified measurement methods, the requirements for the state of standards of established units of quantities or metrological rules and norms in trade, as well as for the production, sale, rental or use of measuring instruments, the types of which are not approved , or for the use of unverified measuring instruments.
For the commission of these offenses, an administrative fine is imposed on officials in the amount of five to tenfifty to one hundred
Art. 23.52 of the Code of Administrative Offenses to consider cases of administrative offenses under Part 3 of Art. 19.19 of the Code of Administrative Offenses, on behalf of the State Standard of Russia (the Agency), the right was granted to the chief state inspector of the Russian Federation for supervision of state standards and ensuring the uniformity of measurements, his deputies, the chief state inspectors of subjects (regions) of the Russian Federation for supervision of state standards and ensuring the uniformity of measurements and their deputies. To consider a case on an administrative offense, authorized officials of the Gosstandart of Russia (Agency) must send the completed protocols on these offenses to the relevant chief state inspector for supervision of state standards and ensuring the uniformity of measurements (his deputy), the chief state inspector of the subject (region) of the Russian Federation for supervision for state standards and ensuring the uniformity of measurements (to his deputy).
As already mentioned, parts 1, 2, paragraph 66 of Art. 28.3 of the Code of Administrative Offenses, authorized officials of the Gosstandart of Russia (the Agency) are also granted the right to draw up protocols on administrative offenses under Part 1 of Art. 19.4, part 1 of Art. 19.5, Art. 19.6, 19.7 of the Code of Administrative Offenses.
Administrative responsibility, under Part. 1 Article. 19.4 and part 1 of Art. 19.5 of the Code of Administrative Offenses, is aimed at ensuring the functioning and increasing the role of state supervision (control), including state control (supervision) over compliance with the mandatory requirements of state standards, mandatory certification rules, and requirements of regulatory documents to ensure the uniformity of measurements.
So, part 1 of Art. 19.4 of the Code of Administrative Offenses establishes administrative liability for disobedience to a legal order or requirement official body exercising state supervision(control), as well as obstruction of the exercise by this official official duties which entails a warning or the imposition of an administrative fine on citizens in the amount of five to tenten to twenty minimum wages.
Part 1 Art. 19.5 of the Code of Administrative Offenses provides for administrative liability for failure to comply within the prescribed period with a legal order (decree, presentation) of the body (official) exercising state supervision (control) to eliminate violations of the law, which entails the imposition of an administrative fine on citizens in the amount of three to five minimum wages; on officials - five to ten minimum wages; for legal entities - fifty to one hundred minimum wages.
Administrative liability under Art. 19.6 and 19.7 of the Code of Administrative Offenses, is aimed at strengthening the role of officials who are granted the right to consider cases of administrative offenses, and at increasing the authority of their decisions on the case.
Yes, Art. 19.6 of the Code of Administrative Offenses establishes administrative responsibility for failure to take measures to eliminate the causes and conditions that contributed to the commission of an administrative offense, which entails the imposition of an administrative fine on officials in the amount of three to five minimum wages.
Art. 19.7 of the Code of Administrative Offenses establishes administrative liability for failure to submit or untimely submission to the state body (official) of data (information) that are provided for by law and necessary for the implementation of this body (official) of its legal activities, as well as the submission to the state body (official) of such information (information) in an incomplete or distorted form, with the exception of cases provided for by Art. 19.8, 19.19 of the Code of Administrative Offenses (these articles already provide for liability for violating the order of information), which entails the imposition of an administrative fine on citizens in the amount of one to three minimum wages; on officials - three to five minimum wages; for legal entities - thirty to fifty minimum wages.
In addition, according to part 3 of Art. 28.3 of the Code of Administrative Offenses, authorized officials of the Gosstandart of Russia (Agency) have the right to draw up protocols on administrative offenses under Parts 2 and 3 of Art. 14.1 and art. 19.20 of the Code of Administrative Offenses on liability for non-compliance with the terms of a license, including those issued by the Agency for the implementation of activities for the manufacture and repair of measuring instruments, as well as Art. 17.7 and 17.9 of the Code of Administrative Offenses, whose responsibility is aimed at the unconditional fulfillment of the requirements of officials conducting proceedings in cases of administrative offenses, and at preventing obstruction of the establishment of the truth in these cases.
So, part 2 of Art. 14.1 of the Code of Administrative Offenses provides for liability for carrying out entrepreneurial activities without a special permit (license), if such a permit (such license) is mandatory (mandatory), which entails the imposition of an administrative fine on citizens in the amount of twenty to twenty five the minimum wage with confiscation manufactured products, tools of production and raw materials or without it; on officials - forty to fifty the minimum wage with confiscation manufactured products, tools of production and raw materials or without it; for legal entities - four hundred to five hundred the minimum wage with confiscation manufactured products, instruments of production and raw materials or without them.
Part 3 Art. 14.1 of the Code of Administrative Offenses provides for liability for carrying out entrepreneurial activities in violation of the conditions provided for by a special permit (license), which entails the imposition of an administrative fine on citizens in the amount of fifteen to twenty minimum wages; on officials - thirty to forty minimum wages; for legal entities - three hundred to four hundred minimum wages.
Part 1 Art. 19.20 of the Code of Administrative Offenses provides for liability for carrying out activities not related to making a profit without a special permit (license), if such a permit (such a license) is mandatory (obligatory), which entails the imposition of an administrative fine on citizens in the amount of five to ten minimum wages; on officials - ten to twenty minimum wages; for legal entities - one hundred to two hundred minimum wages.
Part 2 Art. 19.20 of the Code of Administrative Offenses provides for liability for carrying out activities not related to making a profit, in violation of the requirements or conditions of a special permit (license), if such a permit (such a license) is mandatory (obligatory), which entails the imposition of an administrative fine on citizens in the amount of three to five minimum wages; on officials - five to ten minimum wages; for legal entities - fifty to one hundred minimum wages.
Art. 17.7 of the Code of Administrative Offenses establishes administrative liability for deliberate failure to comply with the legal requirements of an official conducting proceedings in a case of an administrative offense, which entails the imposition of a fine on citizens in the amount of ten to fifteen minimum wages; on officials - twenty to thirty minimum wages.
Art. 17.9 of the Code of Administrative Offenses provides for administrative liability for knowingly false testimony of a witness, an explanation of a specialist, an expert opinion or a knowingly incorrect translation in the proceedings on an administrative offense, which entails the imposition of an administrative fine in the amount of ten to fifteen minimum wages.
Authorized officials of the Gosstandart of Russia, now state control (supervision) bodies federal agency on technical regulation and metrology (see paragraph 6 of the Decree of the Government of the Russian Federation of June 17, 2004 294) protocols on administrative offenses under Part 1 of Art. 19.4, part 1 of Art. 19.5, Art. 19.6, 19.7, 19.20, 17.7 and 17.9 of the Code of Administrative Offenses, in accordance with Part 1 of Art. 23.1 of the Code of Administrative Offenses, must be sent to the appropriate magistrate for consideration of the case of an administrative offense.
Criminal liability
For violation by citizens and officials of security requirements, criminal liability is established in Art. 238 of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation), which contains 3 parts of the following content:"1. Manufacture, storage or transportation for the purpose of sale or sale of goods and products, performance of work or provision of services that do not meet the requirements of the safety of life or health of consumers, as well as the illegal issuance or use of an official document certifying the compliance of these goods, works or services with the requirements security, are punishable by a fine in the amount of up to 300 thousand roubles, or in the amount of wages or other income of the convicted person for a period of up to two years, or by restraint of liberty for a term of up to two years, or by deprivation of liberty for a term of up to two years.
2. The same acts, if they:
a) committed by a group of persons by prior agreement or by an organized group;
b) committed in relation to goods, works or services intended for children under the age of six;
c) caused by negligence the infliction of grievous bodily harm or the death of a person, is punishable by a fine in the amount of from one hundred thousand to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of one to three years, or by restriction of liberty for a term of up to three years, or by deprivation of liberty for a term of up to six years with a fine in the amount of up to five hundred thousand rubles, or in the amount of wages or other the income of the convict for a period of up to three years or without it.
For non-compliance with the mandatory requirements of the standards, legal entities and individuals, bodies government controlled in accordance with the Law of the Russian Federation "On Standardization" they bear administrative, civil or criminal liability. 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. A fine is also provided for the evasion of legal entities and individuals from presenting products, as well as information about it and relevant documentation to state supervision bodies. According to the Criminal Code of the Russian Federation, from January 1, 1997, special criminal liability is established for deceiving a buyer regarding consumer properties or quality of goods (services) determined by the terms of the contract (in retail, service sector), as well as for the production or sale of goods (works, services) that do not meet safety requirements. Criminal liability for violation of any requirements of standards for industrial products is not yet provided for by the Criminal Code. Violation of the mandatory requirements of state standards by subjects economic activity is detected by the state supervision and control services, which are part of the State Standard of Russia as independent structures.
1.4. Responsibility for violation of the mandatory requirements of the standards
IN foreign practice the requirements of the standards are obligatory for implementation in accordance with the general law or if there is a mandatory reference to this standard 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;
Responsibility exists for violation of the standard to which there is a mandatory reference. This reference indicates that compliance with the standards (standard) identified therein - the only way to achieve product compliance with the requirements of technical regulations.
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 links 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, which is discussed further in Ch. 2.
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 *.
* Code of the RSFSR on Administrative Offenses, Art. 170.
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.
Tests for self-control*
1. Goals of standardization:
a) the establishment of mandatory norms and requirements,
c) elimination of technical barriers in international trade.
2. Mandatory normative document is:
a) national (state) standard,
b) technical regulations,
c) enterprise standard.
3. International standards can be applied in Russia:
a) after the introduction of the requirements of the international standard GOST R,
b) before acceptance as GOST R.
* See the end of the book for answers.
Chapter 2. Organization of work on standardization in the Russian Federation
Legal basis standardization and its objectives. Bodies and services for standardization. The procedure for developing standards. State control and supervision over compliance with the mandatory requirements of standards. Marking products with a sign of compliance with state standards.
2.1. Legal basis of standardization and its tasks
Basic legislative acts. The legal basis for standardization in Russia is established by the Law of the Russian Federation "On Standardization". The provisions of the Law are binding on all government bodies, business entities, regardless of the form of ownership, as well as public associations.
The law determines the measures state protection the interests of consumers and the state through the requirements, rules, norms introduced into state standards during their development, and state control over the observance of the mandatory requirements of standards when they are applied.
The law interprets the essence of standardization in the Russian Federation as an activity aimed at determining the norms, rules, requirements, characteristics that should ensure the safety of products, works and services, their technical and information compatibility, interchangeability, quality of products (services) in accordance with the achievements of scientific and technical progress. The norms and requirements of the standards may also apply to the safety of economic facilities in emergency situations (for example, natural and man-made disasters); to the defense capability and mobilization readiness of the country.
In addition to this law, relations in the field of standardization in Russia are regulated by acts of the legislation of the Russian Federation issued in accordance with it, for example, the federal Law “On Amendments and Additions to the Legislative Acts of the Russian Federation in Connection with the Adoption of the Laws of the Russian Federation “On Standardization”, “On Ensuring the Unity measurements”, “On certification of products and services” (1995); Decrees of the Government of the Russian Federation adopted in pursuance of the Law "On Standardization", orders of the State Standard of the Russian Federation. For example, the order of the State Standard of the Russian Federation approved the "Procedure for the State Standard of Russia to conduct State control and supervision over compliance with the mandatory requirements of state standards, rules for mandatory certification and for certified products."
The Law "On Standardization" regulates:
organization of work on standardization,
information support for standardization work,
organization and rules for conducting state control and supervision over compliance with the mandatory requirements of state standards,
financing of works on state standardization, state control and supervision,
stimulating the application of state standards,
liability for violation of the provisions of the Law "On Standardization".
Based on the legal norms of the law, the principles and tasks of standardization in Russia are determined. Standardization principles the following:
the feasibility of developing a standard is determined by analyzing its need in social, economic and technical aspects;
the priority direction of standardization is the safety of the object of standardization for humans and the environment, ensuring compatibility and interchangeability of products;
standards should not be a technical barrier to trade. To do this, it is necessary to take into account international standards (and their drafts), rules, norms of international organizations and national standards of other countries;
the development of a standard should be based on the mutual agreement of the parties concerned and participating in it (consensus). At the same time, everyone's opinion on all issues of mutual interest should be taken into account;
developers of normative documents must comply with: norms of legislation, rules in the field of state control and supervision, interconnection of standardization objects with metrology and other standardization objects; optimality of requirements, norms and characteristics included in the standards;
standards should be updated in a timely manner so as not to be a brake on scientific and technological progress in the country;
the mandatory requirements of the standards must be verifiable and suitable for the purposes of certification of conformity;
standards applied at these levels of management should not duplicate each other.
These principles are implemented in the implementation of the GSS defined by the fundamental standards tasks:
ensuring mutual understanding between all interested parties;
establishment of optimal requirements for the range and quality of the object of standardization in the interests of the consumer and the state;
determination of requirements for safety, compatibility (structural, electrical, electromagnetic, informational, software, etc.), as well as interchangeability of products;
unification structural parts products;
development of metrological standards and regulatory and technical support for measurements, tests, quality assessment and product certification;
optimization of technological processes in order to save material, energy and human resources;
creation, maintenance and harmonization with international rules classification and coding systems for technical and economic information;
organization of systematic provision of consumers and all interested parties with information about the range and quality of products, services, processes by creating a system of catalogs, etc.
Difficulties characteristic of the transition period in Russia pose more narrow, specific tasks for standardization, which include saturation of the market with safe consumer goods and the establishment of civilized barriers to the entry of low-quality imported goods into the Russian market. In this direction, close interaction of standardization and certification is necessary.
Fundamental standards of the State Standardization System (SSS). In accordance with the Law “On Standardization”, the State Standardization System operates in the Russian Federation. The methodological issues of its organization and functioning are set out in the set of state fundamental standards "State Standardization System of the Russian Federation", new edition which was put into effect on April 1, 1994. This complex includes documents:
GOST R 1.0-92 “State standardization system of the Russian Federation. Basic Provisions”;
GOST R 1.2-92 “State standardization system of the Russian Federation. The procedure for the development of State standards”;
GOST R 1.4-93 “State standardization system of the Russian Federation. Industry standards, standards of enterprises, scientific and technical, engineering societies and others public associations. General Provisions”;
GOST R 1.5-92 “State standardization system of the Russian Federation. General requirements to the construction, presentation, design and content of standards”;
PR 50.1.001-93 "Rules for approval and approval of technical specifications".
The standardization system adopted in the Russian Federation provides and maintains up to date a single technical language, unified series of the most important technical characteristics of products, a system of building codes and regulations; size ranges and standard designs of products for general engineering and construction; classification system of technical and economic information, reliable reference data on the properties of materials and substances.
In the conditions of market relations, standardization performs three functions: economic, social and communicative.
The economic function allows stakeholders to obtain reliable information about the product, and in a clear and convenient way. When concluding an agreement (contract), a reference to the standard replaces the description of information about the product and obliges the supplier to comply with the specified requirements and confirm them; in the field of innovation, the analysis of international and progressive national standards allows you to find out and systematize information about the technical level of products, modern methods tests, technological processes, and (importantly) to eliminate duplication; standardization of test methods allows obtaining comparable characteristics of products, which plays an important role in assessing the level of competitiveness of a product (in this case, technical competitiveness); standardization of technological processes, on the one hand, contributes to the improvement of product quality, and on the other hand, to an increase in the efficiency of production management.
However, there is another side of the standard technological process: the possibility of a comparative assessment of the competitiveness of the enterprise in the future. The constant use of only standardized technologies cannot provide a technological breakthrough, and therefore, an advanced position in the world market.
The social function of standardization lies in the fact that it is necessary to strive to include in standards and achieve in production such quality indicators of the object of standardization that contribute to health, sanitary and hygienic standards, safety in use and the possibility of environmentally friendly disposal of the product.
The communicative function is associated with the achievement of mutual understanding in society through the exchange of information. This requires standardized terms, interpretations of concepts, symbols, uniform office rules, etc.
Financing of state standardization. Works on state standardization are financed in accordance with the provisions of the Law "On Standardization". It identifies those areas of activity that are funded by the state, and provides sources of funding.
State funding is provided for:
development of standards containing mandatory requirements for the object of standardization in accordance with the legislation of Russia;
works related to the creation of all-Russian classifiers of technical and economic information, the publication of information on the publication of these documents;
formation and maintenance of the federal fund of state standards and State Register products and services that have been certified for compliance with the mandatory requirements of state standards;
scientific papers related to important standardization issues of national importance;
activities in international organizations for standardization.
State control and supervision over compliance with the mandatory requirements of the standards are also identified by the Law as an important object for state funding.
The sources of cash receipts for the implementation of this legislative provision should be: the implementation of published (reissued) state standards, all-Russian classifiers of technical and economic information; catalog of certified products and services; part of the fines levied during state supervision.
The state provides support not only to those organizations that create normative documents on standardization, but also to those business entities that produce products or offer services marked with a sign of compliance with the mandatory requirements of state standards, which is confirmed through certification.
Special economic support is intended for those enterprises that produce new promising types of products in accordance with the preliminary (promising) requirements of the standards.
2.2. Bodies and services for standardization
State Committee of the Russian Federation for Standardization. According to ISO/IEC Guide 2, standardization activities are carried out by relevant bodies and organizations. The body is considered as a legal or administrative unit with specific tasks and structure. It can be authorities, firms, institutions.
A standardization body is a body whose activities in the field of standardization are generally recognized at the national, regional or international levels. The main functions of such a body are the development and approval of regulatory documents available to a wide range of consumers. However, it can perform many other functions, which is especially true for a national standardization body.
The national standardization body in Russia is the State Committee of the Russian Federation for Standardization and Metrology (Gosstandart of Russia). This is a federal executive body that carries out intersectoral coordination, as well as functional regulation in the field of standardization, metrology and certification.
The State Committee of the Russian Federation for Standardization and Metrology is the legal successor of the abolished Ministry of Industry and Trade of the Russian Federation in relation to the implementation functions public policy in the field of standardization, metrology and certification.
The State Committee of the Russian Federation for Standardization and Metrology is a specially authorized federal executive body in the field of certification. Chairman State Committee of the Russian Federation for Standardization and Metrology is the chief state inspector of the Russian Federation for supervision of state standards and ensuring the uniformity of measurements.
The State Committee of the Russian Federation for Standardization and Metrology is in charge of state inspectors for the supervision of state standards and ensuring the uniformity of measurements, as well as centers for standardization, metrology and certification, enterprises, institutions, educational institutions and other organizations.
Gosstandart of Russia performs the following functions:
coordinates the activities of state governing bodies related to the issues of standardization, certification, metrology;
interacts with the authorities of the republics within the Russian Federation and other subjects of the Federation in the field of standardization, certification, metrology;
directs the activities of technical committees and business entities in the development, application of standards, and other issues in accordance with its competence;
prepares draft laws and other legal acts within its competence;
establishes the procedure and rules for carrying out work on standardization, metrology, certification;
accepts most of the state standards, all-Russian classifiers technical and economic information;
carries out state registration regulatory documents, as well as standard samples of substances and materials;
manages the accreditation of testing laboratories and certification bodies;
carries out state supervision over compliance with the mandatory requirements of standards, metrology rules and mandatory certification;
represents Russia in international organizations dealing with issues of standardization, certification, metrology and in the Interstate Council of the CIS;
cooperates with relevant national authorities of foreign countries;
supervises the work of research institutes and territorial bodies performing the functions of the State Standard in the regions;
exercises control and supervision over compliance with the mandatory requirements of state standards, rules for mandatory certification;
participates in work on international, regional and interstate (within the CIS) standardization;
establishes rules for the application in Russia of international, regional and interstate standards, norms and recommendations*;
* In this direction of its activities, the State Standard of the Russian Federation takes into account international treaties and agreements between Russia and other states.
when developing state standards, determines the organizational and technical rules; forms and methods of interaction between business entities, both among themselves and with government authorities, which will be included in the regulatory document;
organizes training and advanced training of specialists in the field of standardization.
Management and coordination of work on standardization in the field of construction is carried out by the Gosstroy of Russia, and other state government bodies have the right to participate in standardization in accordance with their competence. They can create the necessary services and divisions in their organizational structure and appoint parent organizations for standardization.
The organizational structure of Gosstandart provides for subdivisions for the implementation of a significant amount of work: 19 research institutes, 13 pilot plants, Standards Publishing House, 2 printing houses, 3 educational institutions, more than 100 territorial centers for standardization, metrology and certification (CSM). These centers carry out work on certification of products (services), calibration of measuring instruments, provide engineering and technical support for standardization, metrology, certification. On the basis of the territorial bodies of the State Standard, certification bodies and testing laboratories are being created. As of 1996, more than 500 certification bodies have been accredited various kinds services and about 2,000 testing laboratories.
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Article 19.19. Violation of the mandatory requirements of state standards, mandatory certification rules, violation of the requirements of regulatory 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 measurement procedures, 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.
The Law of the Russian Federation of 06/10/1993 N 5154-1 "On Standardization" became invalid due to the adoption of the Federal Law of 12/27/2002 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 the environment, life, health and property, to ensure technical and information compatibility, interchangeability of products, unity of methods 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 can be legal entities and officials, and hence 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 by which an independent organization certifies the writing that the product meets the specified requirements. Certificate of conformity - a document issued in accordance with the current rules to confirm the conformity of this product 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 the 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 communicate the sale of products to the consumer (buyer, customer) statutory product certification information.
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, given that in the first case we are talking about the actions 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 in 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, submit to the relevant organizations and relevant officials a proposal to take 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 of the 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 participating in the proceedings on a case 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 translation into the language they know.
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 during the course of the court session and record it with the help of sound recording devices. 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, both the participants in the proceedings on the case and the judges, bodies, officials authorized to consider it have the right to raise the issue of closed consideration of the case.
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 individual; legal representatives of a legal entity; protector, representative, and necessary cases- 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 illegal 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 an 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 responsibility; 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, a decision to impose an administrative penalty, or a decision to terminate the proceedings on 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 compliance with 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 the 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 account federal budget, and the costs of the case of an administrative offense provided for by the law of the subject of the Federation and committed by an individual - to the account of the budget of the corresponding subject 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 costs in a case concerning an administrative offense shall be reflected in a decision on the imposition of an administrative penalty or in a decision on the termination of proceedings in a 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 motion to postpone the hearing of the case, or such a motion was left unsatisfied. 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 duration of the 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 constituent documents by the body of the 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 whose proceedings the case of an administrative offense is located, has the right in a specific case to recognize the presence of a legal representative of a legal entity as mandatory (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 to attach documents and material evidence to the case, to call witnesses, to involve and hear a specialist, to appoint an expert in the case, and 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 motions 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 is generally 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 in 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 shall have 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 in legal capacity by the court in accordance with the procedure established 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 the said 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 file a petition to postpone the consideration of the case, or such a petition 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 the case of 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 the constituent documents and the internal documents of legal entities adopted on their basis - local statutory regulatory 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 case is being prosecuted when considering 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 case, 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.
The defense counsel and the representative admitted to participate in the proceedings on the 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, to call witnesses, to involve and hear a specialist, to appoint 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 removal 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 administrative offense case, 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.
The 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, secure and seize 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, the defense counsel and the 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, to 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 an 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 can 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.
Translator. Any adult 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 at the call of 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 knowing 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 whose proceedings the case of an administrative offense is in progress, as well as the procedure for remuneration of specialists, experts and interpreters 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 expenses incurred by them related to the summons to the court, body, official, in whose proceedings the case is being processed. 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 the work performed by them on behalf of the court, body, official (with the exception of cases when this work is part of their official duties or when it is performed by them as an official task), according to 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 the 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 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. forced 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 the drawing up of a protocol is mandatory), it is carried out depending on the nature of the offense committed by the 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 about his whereabouts in the shortest time relatives, the administration at the place of his work (study), as well as the defender are notified. 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 term of administrative detention in general 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 a violation customs regulations, 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. the inspection of things, carried out without violating their constructive integrity, is carried out, if necessary, in order to detect the instruments of committing or subjects 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
In Russia, they will create a register of scammers who, by violating the regulations for the production of a particular product, make their product dangerous to health and even people's lives.
Today, about 80 percent of state standards (GOSTs) are voluntary. If you want - do it, if you want - work according to your own rules. And all the same, they are like a bone in the throat for business. The consumer trusts the goods made in accordance with GOSTs more. And there are attempts to soften the requirements of the standards.
How to make a business work according to the rules? Our correspondent talks about this with the head of the Federal Agency for Technical Regulation and Metrology Alexei Abramov.
So, maybe introduce criminal liability for violation of GOSTs? After all, often they just hide behind!
Alexey Abramov: You are right, there is a big problem of bad faith labeling, when manufacturers use the GOST mark as a marketing bait, but in reality they do not follow the standard.
Such products can be found in any store. Especially
it concerns food products where the market is completely open.
However, I think that here it is necessary, first of all, to unite the efforts of all regulatory authorities in the consumer market and simply respond systematically to such violations within the framework of the provided opportunities.
And if as a result of violations harm to human health is caused? Or is he dead?
Alexey Abramov: For us, this is the subject of an analysis of legally significant facts that may become the basis for recalling the entire consignment of goods from retail. As, for example, it happens
when it is discovered that there is a risk of a factory defect in a certain batch of cars.
But so far, unfortunately, our database of violations of technical regulations is very weak.
Unfortunately, there is no summary statistics, although it should be kept for all cases of harm, primarily in violation of technical regulations.
What is the reason?
Alexey Abramov: We simply lack close interaction with other regulatory bodies. With Rospotrebnadzor, Rostekhnadzor, Rosselkhoznadzor, we have about 30 different control and supervision departments in total, some of them are more, and some are less associated with risks for people.
This is the cooperation we will establish in the first place. In turn, we want to make a resource with this information available to all government agencies. In terms of information on dangerous goods, it should also be open to consumers. If someone "poisons" the people, then the people should know who "poisons" him and with what.
When we accumulate such information, we will see that from year to year, let's say, the number of specific incidents is growing, then there will be grounds for introducing strict certification or other tightening of regulation so that fewer "counterfeit" goods enter the market. We want to create a reliable, actionable analytical tool for informed government decision making in this sensitive area.
It's not just about increased accountability. For example, abroad, controllers from different authorities do not go one after another to the same store. But the inspector, if he sees obvious violations beyond his competence, will not leave them unattended, he will call a specialized specialist who will understand the details.
On the other hand, in Europe, even with unscheduled control, no one will warn the store owner that someone has complained about a specific violation and they will come to him. The inspector can come at any time. With us, sudden checks are excluded, even with unscheduled control, a warning is required. Therefore, businesses always have the opportunity to avoid liability.
Alexey Vladimirovich, when the draft law on standardization was being discussed in the State Duma, one of the deputies demanded that the standards be returned to mandatory significance. What do you think?
Alexey Abramov: First, let me clarify that the part of the voluntary standards that form the basis of technical regulations are, in the vast majority of cases, implicitly implemented. These are standards that ensure the safety of products and allow the manufacturer to enter the market according to simple, understandable rules.
The use of other standards, which is 70-80 percent of the fund of these documents, is not regulated.
Why, after all, a significant part of the standards that are not included in the "body" of technical regulations and are not mandatory, are not in demand by business in Russia? Is it a matter of elementary ignorance?
Alexey Abramov: The trouble with our economy is that for the owners, the management of the majority Russian companies it is important that there is a huge margin and a very fast payback. Beyond the brackets are priorities that are significant in the long term. including neglected economic importance standardization.
Perhaps, in fat years, this could be understood. But when every penny counts, you need to be more prudent in the distribution of your resources. And it makes sense to spend money now to build a qualitatively different business. We just have not fully realized yet that it is possible to collect a ruble for a penny. But Europe has also been moving towards this for a long time.
Do self-regulatory organizations help with this?
Alexey Abramov: Certainly. Many of them develop their own standards, and they are interested in making them national. Builders are especially active.
Yes, indeed, it has been sitting in our mentality since Soviet times - since GOST, then it must be fulfilled by everyone. And this is understandable, because we all, as consumers, want to have a guarantee that we buy quality goods. But it is rather naive, in my opinion, to expect that the use of the old instruments of state regulation in the new economic conditions will be just as effective. And it's not even about the complexity of control. It is impossible to impose on the economy through an administrative resource what it would never have done in its life. Ultimately, this will not bring benefits to either business or consumers.
Why? After all, standards are the best technologies and quality control systems.
Alexey Abramov: The voluntariness of standards allows active, advanced companies to move forward, prescribe their own rules, new standards - without causing direct harm to those businesses that cannot or do not want to follow the standards.
But even if the standards are voluntary, they are increasingly being used. Water wears away the stone. Because the one who develops and uses the standards still turns out to be more competitive - and in the end it is he, and not the "marginal" competitor, who wins.
And what will happen to our standards in connection with the creation of the Eurasian Economic Union?
Alexey Abramov: We already have standards that are in force throughout the CIS, and their number will continue to grow. Here, however, not everything depends on us. It happens that a standard that we have already developed "hangs" at the voting stage, because colleagues from the standardization bodies of other CIS countries have complaints about it.
And which of them is the most uncompromising?
Alexey Abramov: It cannot be said that someone is the most uncompromising. Just if countries have concerns that the standard could harm their industry, stop specific enterprise, then we try to find a compromise that will allow us to accept the document. This is important for us to ensure uniform rules throughout the CIS, because it provides an opportunity for cooperation.
And sometimes we are forced to relax the requirements of the standards so that our colleagues can also work according to these rules. But usually we still agree that after some time we will come to the target requirements. A classic example is the consistent increase in fuel environmental friendliness classes, we are all well aware that the CIS countries are prepared for them in different ways.
How common are these conflicts of interest?
Alexey Abramov: These are isolated cases. We have similar technological structures, we all grew out of one big economy. In fact, Russia is the locomotive in the creation of interstate standards. We are preparing a large number of such documents, and our colleagues evaluate their technical capabilities in the further application of such standards.
And what standards are now in Russia most actively being drawn up to international ones?
Alexey Abramov: In the field of construction, electrical engineering, where we have a share of harmonized standards tends to 100 percent.
The level of harmonization is gradually increasing, as we annually update about 10 percent of the entire stock of standards. Now 50 percent of the standards are harmonized.
If we see that objectively the European standard is better and it definitely won't harm us, we accept it and promote it to the level of the CIS. In my opinion, it is much more important how many standards pass from Russia to the international level.
Aren't we just adopting other people's standards?
Alexey Abramov: It is interesting that even some of our powerful enterprises simply do not know that they can offer their own standard, prove that these rules should be used in many countries of the world.
We have already persuaded major oil and gas companies to participate in the work of the International Organization for Standardization (ISO) and the International Electrotechnical Commission. We are very grateful to them for this. It is easier for large export-oriented companies to understand the benefits of promoting their standards on international platforms.
We will work with a number of other companies to bring them to this arena. Although it would be better if you explain why standardization is needed and why it is necessary to invest in promoting standards at the international level, it will not be the state, but business colleagues.
Why is the participation of our experts in ISO so important?
Alexey Abramov: Exactly at international standards laid all the "salt" further competition for the global market.
We are now defining the work of nine ISO technical committees and three committees of the International Electrotechnical Commission. There we run secretariats, manage technical work. And, of course, we are interested in expanding Russia's influence in international organizations. But this cannot be done administratively. I cannot take and simply appoint employees from Rosstandart there. Specialists from companies that know the process in depth should work there.
But so far not all of our companies, even large ones, are ready to bear the costs of maintaining "Russian" committees in ISO. Here, in addition to the fact that it is generally difficult to "rock" the business, the lack of specialists and language barriers affect. Naturally, a person who owns at least English language. Better yet, French.
But China, for example, is actively engaged in increasing its influence in ISO. Chinese colleagues actively sponsor this activity - they support their experts who are ready to work in ISO. This allows you to use international standardization to expand expansion Chinese goods to global markets. And the new president of ISO from next year will be a representative of China.
Business card
Alexey Vladimirovich Abramov, Head of the Federal Agency for Technical Regulation and Metrology
Worked in the apparatus of the government of the Russian Federation. Supervised the issues of technical regulation and standardization, the development of the institute intellectual property, small business support.
