A WORD TO THE READERS
UNIVERSITY CHRONICLE IN THE ANNIVERSARY YEAR
EXPERT OPINION
The reform of control and supervisory activities received legislative registration with the adoption of two basic federal laws “On Mandatory Requirements in the Russian Federation” and “On State Control (Supervision) and Municipal Control in the Russian Federation”. This circumstance has increased scientific interest in the problem of the presence and limits of administrative coercion in the implementation of control and supervisory activities. Based on the analysis of normative legal acts, the article examines the application of administrative coercion measures in the conduct of control, quasi-control and supervision in the field of public administration. The conclusion is substantiated that administrative coercion is an obligatory element of supervisory activity, a criterion that allows to distinguish this activity from the control one. In the exercise of control, coercion is disciplinary in nature. However, in the conditions of legislative identification of control and supervision, coercive measures penetrate into the implementation of control, which turns it into quasi-control.
VECTOR OF LEGAL SCIENCE. ADMINISTRATIVE COERCION IN ADMINISTRATIVE LAW
The article reveals the essence, purpose and content of these management methods, their objective conditionality by material and superstructure factors, the state structure of society, which can be democratic or totalitarian. It follows from this that not a single state, including the Russian Federation, is free in the choice of methods of managing the affairs of society. The main method of influencing public relations, the interaction of people is persuasion. The slogan of the classic — “We must at all costs first convince, and then compel” — remains unshakable in our days. The article provides specific signs of persuasion and administrative coercion, which make it possible to clearly distinguish them, not to oppose and not to lose, as happened in modern life with persuasion and its most important form — education.
The article discusses the problems of disclosing the content of administrative and legal coercion, analyzes various classifications. It is noted that the existing opinion that one of the first authors of the three-term classification of administrative and legal coercion is M. I. Eropkin, is not entirely correct, since other classifications were proposed much earlier. In the article they are analyzed and on this basis the signs of administrative and legal coercion are formulated. This is their state-imperious nature, coercion is applied exclusively on a legal basis. This is a sectoral method of influence, which consists in the application by the competent state authorities and their officials of temporary measures established by law and restrictions on the rights and freedoms of a citizen.
Comparing the content of administrative responsibility and administrativelegal coercion, it was concluded that it is broader than coercion, coercion is only part of the responsibility. Administrative-legal coercion is always the forcible submission of the will of the controlled subject to the will of the manager, and this subject can take responsibility without violence, voluntarily. This conclusion is based on specific examples.
The article examines administrative coercion in enforcement proceedings as a legal phenomenon. The author considers it, firstly, as one of the types of state coercion, and secondly, as a kind of administrative coercion, and comes to the conclusion that enforcement proceedings are inseparable from administrative coercion by their nature. Both elements that make up the general concept under study are generated by the state, are necessary for the exercise of state power, the achievement of a publicly significant goal. This goal is determined by the actual enforcement proceedings as a necessary specific type of activity aimed at completing the cycle of jurisdictional proceedings: in cases of administrative offenses, civil, arbitration, administrative proceedings, and others, to solve its tasks. In enforcement proceedings, only its combination with administrative coercion can achieve the goal of public authority, to achieve the real execution of the act of a jurisdictional body, an official. In addition, administrative coercion is a method of public administration, an effective tool with which enforcement proceedings are carried out. The article also presents the author’s classification of types of administrative coercion in enforcement proceedings, and raises the problem of improving the legislation on it.
The article analyzes various opinions of administrative scientists regarding the concept of administrative preventive measures, their classification. Specific compulsory measures of administrative warning applied to minors are given. The author gives examples of the classification of administrative and preventive measures, revealing their main and distinctive features. Depending on the purpose of coercion, the author identifies two groups of administrative prevention measures: 1) measures applied in the event of a threat to public safety and personal safety to prevent possible harm, and 2) measures applied in relation to persons who have committed a wrongful act in order to prevent them from committing new offenses.
In conclusion of the article, the author defines as the main feature of administrative coercion measures the coercive nature of this group of measures, consisting in the implementation of imperious and unilateral actions that are not agreed with the opposite party who is obliged to fulfill the order, perform the actions necessary in this situation, or refrain from committing them.
The legal regulation of administrative coercion measures as the basic structural units of administrative coercion is considered in the article through the prism of the concept of "method of coercive influence", which is the key, essential for the characterization of the content of the administrative coercion measure, and the elements that determine the legality of its application. The chosen methodological approach allowed the author to assess at a deeper theoretical level the quality of the legal regulation of certain administrative enforcement measures used by the police, and to identify the shortcomings associated with the consolidation in the legislation of the method of coercive influence of such coercive measures as the use of physical force and firearms, suspension from driving a vehicle, to identify problematic issues in the use of firearms by police officers, due to the regulation of the grounds, the procedure and conditions for the implementation of this method of coercive influence. A variant of the concept of "resistance" is proposed to eliminate the gap in the current legislation.
VECTOR OF LEGAL SCIENCE. MEASURES OF ADMINISTRATIVE COERCION: MODERN PRACTICE
The article reveals the goals and content of preventive activities aimed at countering the illicit trafficking of precursors of narcotic drugs and psychotropic substances, as well as plants and their parts containing drug
precursors, the legal status of public authorities authorized in this area. The author’s justification for the classification of administrative prevention measures used to counteract the illicit trafficking of precursors is given. At the same time, a distinction is made regarding the spheres of public life covered by the application of a specific administrative and preventive measure, including the following: economic, social, legal, medical, educational, and cultural and leisure areas. The examples reveal the features of the preventive work of individual executive authorities that perform the relevant functions of branch management.
In conclusion, it is concluded that it is necessary to plan preventive measures, taking into account a thorough study of all possible risks associated with the implementation of operations with precursors. A spontaneous approach to the implementation of administrative prevention measures in this area is considered unacceptable.
The article provides an analysis of the application of administrative enforcement measures applied in the Russian migration policy. The features of the application of both administrative liability measures and other measures that are not administrative penalties are investigated. The authors also pay attention to the application of procedural security measures in migration legal relations. The article notes the importance of the fact that administrative enforcement measures in the field of migration are applied in the Russian Federation solely for the purpose of protecting the interests of the state, ensuring the safety of citizens and are based both on the norms of national legislation and on the norms of international law. The analysis of the current Russian legislation regulating legal relations in the field of migration is carried out. Special attention is paid to the composition of administrative offenses in the industry under study, the types of penalties for them, and the specifics of their application are considered in detail. Specific examples from judicial practice of consideration of the designated category of cases are given. The article examines the developing trend of judicial practice in cases of administrative offenses for non-execution of such a type of punishment as administrative expulsion.
The article examines the features of administrative and legal coercion in the field of migration. It provides an analysis of regulatory legal acts in which the function of migration control is assigned to the internal affairs bodies and measures to prevent and reduce uncontrolled migration are determined. A special place is occupied by the directions of improving public administration in the field of migration policy.
Analysis of constant changes in the legal status of "migration" units, when they then raised their status to a federal service, first subordinate to the Ministry of Internal Affairs of Russia, then to an independent federal service subordinate to the Government of the Russian Federation, then they returned to the Ministry of Internal Affairs of Russia, but now to the level the usual structural divisions of the ministry showed that these decisions were erroneous. The abolition of the Federal Migration Service in 2016 and the transfer of its functions to the Ministry of Internal Affairs of Russia entailed fundamental institutional changes, which reflects a stable pattern in the prevalence of administrative and legal coercion measures in public administration, does not contribute to an increase in the efficiency of public administration in the field of migration, complicates problems of implementing the functions of social adaptation and integration of migrants, which the Ministry of Internal Affairs of Russia is unable to effectively implement.
The article examines the possibility of applying compulsory hospitalization and isolation to persons infected with the coronavirus, and to persons who have been in contact with the former. There are two mechanisms of coercion: coercive measures and mandatory measures. A distinction is made between the concepts of hospitalization and isolation, and legal subjects of the relevant legal relations are analyzed. The scientific and theoretical provisions of the article are illustrated by the author using the example of Russian legislation (codes and other federal laws, bylaws of the Ministry of Health of the Russian Federation and Rospotrebnadzor, relating to both substantive law and procedural law), as well as practice that has developed or is only emerging in domestic courts. At the end of the article, the existing regulatory problems, in particular conflicting regulation, are described and some solutions are proposed.
The subject of the study in this paper is administrative prevention measures and their variety, such as preventive measures. The purpose of the study is to analyze the nature of administrative prevention measures and their administrative procedure. The paper concludes that it is premature to talk about the existence of proceedings on the application of administrative prevention (preventive) measures, since the Russian Federation has not fully developed a system of administrative procedural rules governing this type of proceedings from the stage of initiating an administrative case to the stage of appeal. At the same time, taking into account the introduction of a risk- oriented approach in public administration, the need for the formation of this type of administrative proceedings increases. It is also suggested that the peculiarities of the legal regulation of the procedural procedure for the application of administrative prevention measures depend on two important conditions: (1) the effectiveness of the application of the relevant measure by law enforcement officials and their officials; (2) the ability to ensure respect for the rights and freedoms of a person and citizen in the existing procedure of application.
The most important place among the measures of administrative coercion is occupied by measures of administrative restraint, highlighted by all authors dealing with public administration issues and investigating the effectiveness of the methods used to implement executive power. The current legislation provides for a significant arsenal of tools that are a way to respond to the cessation of violations in the field of public administration. Covering various public relations, these measures are very successfully applied in the implementation of licensing legal relations. Licensing and the implementation of subsequent licensing control involves the active use of administrative measures such as revocation or revocation of the license, suspension of its validity, as well as the issuance of an order to eliminate violations of the license legislation. At the same time, there are different points of view on the issue of attributing certain measures to administrative measures of restraint, which caused the need for additional reference to this topic of research. The author draws conclusions and expresses his own opinions on the types of administrative preventive measures related to the licensing and licensing sphere.
VECTOR OF LEGAL SCIENCE. ADMINISTRATIVE PROCEEDINGS: THEORY AND PRACTICE
The article deals with the issues of administrative proceedings in Roman law. Its beginning was laid in the 5th century BC by the laws of ХII tables. They briefly deal with the issues of legal proceedings, which at that time was called court agreement. Free citizens gathered at the forum (city square), where the plaintiff presented claims to the defendant. In Roman law, the rule was established to make claims through claims, which the magistrate (praetor) had to support. The judges were elected by the people. Gradually, the praetors changed the formulas of claims, which contributed to the development of Roman law. Often they proceeded not from the law, but from the circumstances of the case, therefore they could instruct the judge to consider the case “in good faith.” Gradually, various forms of claims were formed, which contributed to the improvement of administrative proceedings. In Roman law, many concepts were laid that have remained in modern legal proceedings. This is the election and turnover of judges, the necessary defense, the writ of execution and the persons who monitored their execution; jurisdiction; corruption; search procedure; jurisdiction; privilege; appeal against court decisions; requirement for witnesses; consideration of cases by the police; torts; limitation of actions; and some others. This makes the study of Roman justice relevant.
The article is devoted to the study of the problems of legal regulation of jurisdiction and jurisdiction of cases of administrative offenses in the light of the forthcoming reform of administrative tort legislation. The author shows how the issues of optimizing jurisdiction and jurisdiction in such cases are related to solving the problem of ineffectiveness in the administration of justice in the sphere of administrative-tort relations and restoring the systemic character of legislative regulation of administrative responsibility, establishing clear criteria for the distribution of cases of administrative offenses between judicial and non-judicial bodies, with one hand, and within individual links of the judicial system — on the other. Particular attention is paid to substantiating the need to establish a predominantly out-of-court procedure for considering cases of administrative offenses. At the same time, it is emphasized that the optimization of the administrative and jurisdictional activities of the courts should be associated with such factors as the social significance and direction of the unlawful act, as well as the severity of administrative punishment. In this regard, the appointment of administrative punishments in the form of a warning, deprivation of special rights and administrative expulsion in the form of an independent departure from the Russian Federation is proposed to be attributed to the exclusive competence of the executive authorities.With regard to an administrative fine, the author concludes that only in cases where the size of the fine is comparable to a more severe administrative penalty or the amount of increased fines established for crimes in similar areas of activity, its imposition should be attributed to the exclusive competence of the court.In certain cases, it is also proposed to introduce a simplified procedure for considering cases in the courts on the imposition of an administrative fine.
TRIBUNE FOR YOUNG SCIENTIST
The article discusses the main directions of development and improvement of regulatory legal acts regulating the use of unmanned vehicles in the Russian Federation, the legal responsibility of the manufacturer, owner, operator of such a technical device.
It is concluded that the priority of the digitalization of the transport complex is the widespread use of BPTS, mainly so far in the field of road and air transport. Examples of pilotless vehicles that have been in trial operation for several years are given. The experiment, which is currently being carried out, will be completed on the 2nd of 2022 and a decision will be made on the ways of developing unmanned vehicles.
It is concluded that the priority of the digitalization of the transport complex is the widespread use of BPTS, mainly so far in the field of road and air transport. Examples of pilotless vehicles that have been in trial operation for several years are given. The experiment, which is currently being carried out, will be completed on the 2nd of 2022 and a decision will be made on the ways of developing unmanned vehicles.
The article provides a detailed analysis of three bills regulating the creation and use of unmanned vehicles. Two of them have already been included in the State Duma of the Russian Federation in 2019 and 2020. and rejected, the third was prepared by the Ministry of Transport in 2021 and submitted for discussion.
The article provides a comparative analysis of the legislation on administrative offenses of the Russian Federation and the Republic of Azerbaijan in the provision of public services. It is noted that the Code of Administrative Offenses of the Russian Federation provides for only one article 5.63 "Violation of the legislation on the organization of the provision of state and municipal services." The article provides a detailed analysis of all its parts. The ways of improving the disposition of the article are proposed. The Code of Administrative Offenses of the Republic of Azerbaijan contains Article 380, which establishes administrative responsibility for violation of the legislation on electronic signature and electronic document. There are Rules for the provision of electronic services in the Republic of Azerbaijan, article 13 of which establishes not administrative responsibility, but the obligation of electronic service providers to ensure the protection of personal data and other information that was obtained in the course of the provision of electronic services. At the end of the article, conclusions are made about the possibility of applying the positive experience of both countries in their legislation.
Strategic planning is one of the key mechanisms for ensuring purposeful and sustainable development of the state, economy and society. With the adoption of Federal Law No. 172-FZ of 28.06.2014 “On Strategic Planning in the Russian Federation”, a new stage in the formation of the state strategic planning system has begun in the Russian Federation. The article examines the shortcomings of the current legislative regulation in the Russian Federation on the issues of control over the implementation of strategic planning documents, as well as responsibility for their improper execution. It is noted that the provisions of the current legislation on control and responsibility in the field of strategic planning are insufficient for the full implementation of the mechanisms of state strategic planning. The author substantiates the need to establish a unified procedure for monitoring and monitoring the implementation of strategic planning documents, as well as the introduction of special norms into the current legislation that provide for liability for offenses committed in this area.
In this article, an attempt is made to analyze the existing legal mechanisms for the formation of the state system for the prevention and elimination of forest fires, to outline ways to improve state policy in this area. The author presents the results of the analysis of the content of text arrays of normative legal acts regulating the prevention and elimination of forest fires. disaster Medicine of the Ministry of Defense of the Russian Federation. The genesis of legislative acts reflecting the functions of the state to protect the population and territories from emergency situations is carried out. With the help of content analysis, the characteristics of various governing documents in the field under consideration are given. The main key points contained in the analyzed documents are shown. The positive and negative sides, as well as contradictions affecting the functioning of the RSChS and the functional subsystem of the Federal Forestry Agency for the protection of forests from fires and their protection from pests and forest diseases are revealed. The qualitative approach of content analysis allowed us to determine the content of problematic issues that are poorly reflected in regulatory legal documents, or have a logical contradiction when compared with each other. The proposals for improving the state policy in the field of prevention and elimination of forest fires in Russia are substantiated.
Administrative penalties applied to legal entities are among the most common and effective measures of administrative coercion. The analysis of the legislation made it possible to identify the system of administrative penalties applied to legal entities in the Russian Federation. The author characterizes the system and the main types of administrative penalties of legal entities, such as a warning, an administrative fine, confiscation, administrative suspension of activity. It is noted that the most common is an administrative fine. However, there are problems with its appointment. The materials of judicial practice on the application of administrative sanctions to legal entities are analyzed. As a result of the analysis, the need to optimize administrative penalties applied to legal entities is noted. The article examines the norms of the draft Administrative Code of the Russian Federation in relation to administrative penalties applied to legal entities. The positive and negative aspects of the proposed codification are noted.
The article is devoted to the study of the problems and the role of digitalization in increasing the efficiency of the functions of the executive branch, the possibility of digitalizing the provision of traffic police services. The author considers the domestic and foreign experience in the implementation of powers for the provision of public services, and also investigates the sources of the regulatory framework for the provision of public services in electronic form. Particular attention is paid to the large-scale transformation of the provision of public services into electronic form. The article indicates the total number of the provision of electronic services by the Ministry of Internal Affairs, its divisions, the prospect of the development of the provision of electronic services in the near future is noted: the transition from the provision of separate administrative procedures to the provision of a complete (complex) public service, specific regulatory provisions (steps)are indicated. It is concluded that the transition to an exclusively electronic provision of all services at this stage of development of legal regulation is impossible, as well as the inability of artificial intelligence to completely replace and eliminate the human factor in the provision of all public services in electronic form.
The article contains analysis of one of the least studied public enforcement measures which is suspension of acts of the higher official (the head of the highest executive body of the state power), executive bodies of the Russian Federation constituent entities.
The author focuses on the presidential decision to enact the public enforcement measure that is considered in the presented article, in particular, the form of the legal act of governance which implements that presidential decision, the wording of the name and the content of such a legal act is under review. It is shown that neither legislative regulation nor enforcement practice is perfect when it comes to the sphere of federal relations.
Furthermore, the presented article addresses such issues as normativity and legal certainty of decrees and orders of the Head of State which implement the presidential decision to suspend the act of the executive body of the Russian Federation constituent entities.
The historical and legal part of the subject of study is presented by statistical data that makes some corrections to the usually reported data considering the number of legal presidential acts that were mentioned.
LAW IN HISTORICAL INTERPRETATION
Power, state, law, coercion. These categories have endlessly and cyclically combined and separated in the works of scholars and writers. The famous Russian lawyer A.S. Kotlyarevsky made a significant contribution to the development of this subject matter. For instance, his monograph Power and Law: the Problem of the Law-Governed State (1915) anticipated many of the later high-profile works by foreign colleagues.
POST SCRIPTUM
ISSN 2782-6163 (Online)