Law

Doctor of Laws Balabiev Kayrat

Peoples' Friendship University

Production principles on affairs

about administrative offenses of legal entities

Any procedural activity is based on system of principles. They promote improvement of legal regulation in the corresponding area, to simplification of law-enforcement activity, especially in the presence of gaps in the law, and also at cancellation out-of-date and acceptance of new legal norms. Thus «with reference to administrative jurisdictional process it is difficult to tell about any settled frame of reference on its principles, as disorder of opinions of scientists is big». Each individual relation expressing administrative will of the state, can have, according to V.A.Yusupov, «a various combination of elements of adjoining communications. Those of them which are saturated mainly with ideological elements, become defining relations and form the rules-principles. The relations sated with elements of political and organizational connections, can form norms definitions, norms –purposes or the norms-rules providing direct administrative activity». Thus, the ideological aspects which are expressing in a position of the legislator, with reference to this or that object of management, are integrated in fundamental ideas and made out in system of principles. Requirements of society and interests of the state are the main motive power of establishment and fixing bases of multidimensional interaction of people and various social formations. Researches of a problem of principles and guarantees of their providing in production on cases of administrative offenses of legal entities is a part of a common problem of their regulation and providing in the right whole. Thus most narrowly specified principles are connected with principles and production guarantees on cases of administrative offenses in the traditional (standard) understanding. Requirements of principles, can be realized only under condition of existence real guarantees of their implementation, so without guarantees principles have formal character. Principles of administrative law, in particular, are understood as ideas, basic provisions by which are guided the legislator designing rules of law, and the performer of these norm: enforcement agencies, officials, citizens. On cases of administrative offenses of legal entities it is necessary to understand a frame of reference as production principles, approaches and the ideas characterizing as an order of involvement of offenders to responsibility, which should be guided by enforcers, and those rules of law, which emphasize the legal status of all other participants in this production.

The main requirements to which principles of administrative process should answer are allocated. At first, the principle should possess with high degree of generalization. It means that as a principle cannot be recognized any line of administrative and procedural activity, but only expressing idea, which would be extended to the whole process would help to reveal the specifics of the administrative process in comparison with other forms of administrative activity. Secondly, principles should be fixed in the rule of law. Administrative and procedural activity can be carried out only on the beginnings and the forms ordered by the law therefore also basic provisions on which this activity is under construction, should be fixed in the current legislation. No ideas can regulate legal relations until they won't be given a state domineering character and they don't become rules of law. Production principles on cases of administrative offenses reflect specifics of the legal norms fixed in the Constitution of the Republic of Kazakhstan, in the laws and other regulations, determine essence of the organization and activities of authorized control and supervising and jurisdictional bodies for excitement, consideration and permission of affairs of administrative offenses, and also by performance of resolutions about imposing and application of official penalties, an order of their appeal or protest. With reference to administrative jurisdictional production concerning legal entities it is necessary to allocate a number of the fundamental principles allowing not only to identify this activity in comparison with others, but also to define the base ideas making essence of considered production. Production principles on cases of administrative offenses of legal entities are expedient for grouping in degree of their universality. It is necessary to include in the first group (the general principles) those that can equally be applied to the production of cases of administrative offenses of individuals. However, it is necessary to emphasize that the general principles of considered production are characterized by by specifics of their realization. Other group (special principles) unite the principles inherent in exclusively considered production and reflects the specifics of activity connected with attraction to administrative responsibility of legal entities. The general principles treat: legality, objective (material) truth, protection of interests of the state and legal entities, ensuring the right to protection, publicity, equality before the law and the enforcer. A group of special principles are: a combination of the presumption of innocence and fair imputation, a combination of legal and administrative responsibility of officials, profitability and efficiency. The legality principle as one of elements of democracy and the constitutional state consists in strict performance of laws and other legal acts corresponding to them all bodies of the state and officials. Being guided by this principle, the legal entity can be subjected to an influence measure for perfect act only within the current legislation concerning the bases and an order of attraction of a similar legal entity to responsibility. Legality means also protection of the rights and legitimate interests of participants of administrative process from these or those violations and possibility to appeal against illegal actions. «A legality principle as the requirement of strict and steady observance and realization by all competent public institutions and their officials of laws, is a necessary sign, a basis of all field of activity of law enforcement agencies. Thus legality penetrates not only the bases of legal responsibility, but also all process of its implementation». In order that production on cases of administrative offenses of legal entities was carried out on the basis of strict observance of legality, the state assumes functions of supervision over strict observance of this principle by departmental control, public prosecutor's supervision, possibility of the appeal taken out in the matter of the resolution and other ways. Other general principle is the principle of objective (material) truth. At the heart of this principle comprehensive and objective investigation of all circumstances of business lies and as the basis for decision-making on the case of administrative offenses the actual data characterizing illegal act and made his face act. Under the research data on the identity of the person which has made illegal act but also subjective side of the offense. In other cases the principle of objective (material) truth should be treated only from a position of establishment of the actual circumstances of perfect act without the subjective content of behavior of the subject of responsibility (legal entity). In the case to production on cases of administrative offenses of legal entities it is necessary recognize that in any case enforcers should to carry out so a legal investigation that all circumstances of case were found out comprehensively, fully and objectively. Promote it fixing in the legislation of various guarantees which put a reliable barrier to possible violations of norms and poor-quality carrying out investigation. It is necessary to carry possibility of the appeal of the resolution to these guarantees on the case of an administrative offense, the right to declare petitions and branches, the right to get acquainted with all materials of deal and to offer explanations and etc.

Among other principles of production the important place occupies a principle of protection of interests of the state and legal entities. Fixing of this fundamental idea promotes realization of interests of the state and legal entities in various branches and activity spheres. All activity of representatives on that bodies on accountability for a perfect offense of legal entities, should be directed on achievement of such state of affairs at which the state, citizens and legal entities will be protected from unfair and illegal actions from collective educations. By fixing of this principle the state assumes the obligation and guarantees to all managing subjects (to the enterprises, establishments, the organizations and citizens) that their interests will be protected, and offenders will be made answerable. This principle is directed also on protection of interests of the state as allows to choose on its basis the effective mechanism of protection of the most important state priorities. One of the most important general principles of administrative and jurisdictional process, both in the relations of the legal entity, and with reference to the offender individual the providing principle is rights to protection. It should be noted that in legal literature on criminal trial the importance of the use of the phrase «a simplification principle accused the rights to protection», than the concept use «a principle of the right accused on protection» was for a long time emphasized. It is a question of the person involved in administrative responsibility. As well as in criminal trial, in administrative production category «ensuring the right to protection» is concept wider, than category «the right to protection» because in it included besides implementation of the rights, activities of other participants of process for implementation of the rights and legitimate interests of the person involved in administrative responsibility. The Art. 584.1 CAO fixes a number of procedural rights of the person against whom proceedings are being conducted on an administrative offense: to get acquainted with the case, to offer explanations, to produce the evidence, to declare petitions, to be present by an adjudication, to use a legal aid of the lawyer, to appeal against the resolution on deal, etc. Besides, according to articles 13 and 16 of the Constitution of the Republic of Kazakhstan everyone can protect the rights and freedoms in all ways not forbidden by the law, and judicial protection is guaranteed to him. Although Constitution of RK doesn't mention category of the legal entity, it is obviously possible to distribute this situation and in relation to them. According to Article 27 CAO since the protocol on administrative offense defender can participate in the proceedings. On cases of administrative offenses it is necessary to call a significant general principle of production a publicity principle. The designated principle follows from positions of the Constitution of the Republic of Kazakhstan providing open trial of affairs in all vessels. The publicity principle in production on cases of administrative offenses means open hearing of cases about administrative offenses. It means availability of process to visit by citizens, its public character. At the same time in some cases (which extend and concerning citizens) open hearing of cases is excluded. It is situations when it can lead to disclosure of the secret state, military, commercial or protected by the law, and in all cases demanding interests of safety of persons, participating in proceeding, members of their families, their relatives, and also honor and dignity protection of the specified persons (p.1 Art. 24.1 CAO). So, with reference to production with participation of the legal entity to the information covered by the concept of trade secrets include information about concluded contracts, customer lists (partners, suppliers), the analysis of the market, the strategy of a legal entity in the market and so on. The principle of equality of participants in proceedings on administrative offenses of legal entities before the law enforcer, and it follows from the meaning of the provisions of Article 14 of the Constitution of the Republic of Kazakhstan and Art. 11.2 of the Administrative Code. The last article fixes a principle of equality both physical, and legal entities of production on cases of administrative offenses on a number of circumstances. Among these circumstances with reference to individuals are allocated the racial and national identity, a floor, language, an origin, property and official capacity, a residence, education, the relation to religion, belief, belonging to public associations and other. With reference to legal entities the considered principle is fixed in p.1 art. 36 of the Administrative Code, where it is told that legal entities are subject to administrative responsibility irrespective of location, organizational and legal forms, subordination, and also other circumstances. Equality means the absence of various privileges, depending on the property, service, geographical, institutional, social status and other circumstances.

The arbitration procedural code of the Republic of Kazakhstan from July 13, 1999 (further – RK AIK), fixes equality before the law and court organizations irrespective of the location, subordination, ownership. The specified norm is addressed not only to arbitration court and the parties, but also all other participants of arbitration process. The similar approach is fixed now and in administrative and jurisdictional production.

The principle of equality of participants of production on cases of administrative offenses of legal entities emphasizes that concerning any legal entity by an adjudication about an administrative offense should be applied the same material norms and procedural rules. The concept of administrative offense, an order of hearing of cases, principles of purpose of punishment, possibility and an order of the appeal of the made decision are uniform, etc. Equality before the body authorized to consider the case of an administrative offense (enforcer), follows from the equality of subjects of production before the law. Immunity is not the personal privilege, and has public and legal character and is directed on ensuring the increased protection owing to carried out state to function. Other group of principles of production on cases of administrative offenses of legal entities is special principles.

With reference to production concerning legal entities the principle of a combination of a presumption of innocence and an objective imputation is rather specific. This principle, characterizing considered production as a whole, includes two opposite approaches. Thus, the specified principle consists of a principle of a presumption of the innocence, the production which was the major principle on cases of administrative offenses in its traditional understanding and a principle of the objective imputation, unknown before recent time to the administrative legislation. Consistent lighting allows them to get an idea of their combination in the regulation of issues regarding the production of legal entities. Article 12 of the Administrative Code of the Republic of Kazakhstan contains a provision that the presumption of innocence based on the assumption that a person is considered innocent until his guilt is proved in the manner prescribed by law. Objective imputation involves a situation where it does not matter for the enforcers the circumstances (except in cases of force majeure), there was a violation of legal and administrative rules. Thus, the organizations aren't considered as carriers of objectively existing manifestation of activity of consciousness. This position is shared by many authors. The principle of a presumption of innocence assumes existence of the rule, according to which a duty to prove guilt of the person in commission of an administrative offense lies on the appropriate jurisdictional body. As a consequence, the person brought to justice, is not obliged to prove his innocence, although entitled to do it. Not representation by this person of proofs of the innocence can't be considered as the circumstance testifying against him. The principle of a presumption of innocence found the fixing in article 12 CAO. Thought in this article nothing says about the legal entity, to extend it to the cases of attraction to administrative responsibility of collective subjects is necessary, but as already noted, given some of the features of the legal status of legal entity. Organizations «... are responsible for a number of administrative violations irrespective of, whether they are guilty. The subjects solving questions of their responsibility, aren't obliged to find out, prove fault existence. The organizations in such cases are responsibility that the rule is broken, that occurred». Objective imputation should cover the cases of administrative responsibility of the organization, when the mental attitude of the team and officials to their duties fairly clear and well established in the law of the algorithm by which it is possible to determine the person which has not executed the duty before the state. The principle of fair imputation fixed in p.3 art.77. of the Constitution of RK, which states: "A legal person shall be guilty of committing an administrative offense if it is determined that it was possible to comply with the rules and regulations for the violation of which this Code or the laws subject of RK provides for administrative responsibility, but this person is not taken all possible measures to comply with them." It is understood a situation in which the authorized officer must find a causal link between the wrongful action (or inaction) of a liability and the consequences of Happy, that is, factual circumstances of the events of the offense. Thus, the necessity of proving his innocence to the offense, if such a situation, in fact, moved from the jurisdictional authority in the direction of collective formation. That is why the principle of presumption of innocence must be called in conjunction with the principle of fair imputation applied in cases prescribed by law and order.

The principle of presumption of innocence and a combination of objective imputation is necessary to mention in a number of other principles, with the obligatory indication of the fact that enforcers must choose one or another of its component, guided by the special cases stipulated by the legislator, and only with respect to the subject of a legal person of the offense. Peculiar interpretation of the principles of the state and legal persons is Article 34 paragraph 2 of the Administrative Code, which states: "The appointment of an administrative penalty on a legal entity not exempt from administrative liability for the offense is guilty of a natural person, as well as to administrative or criminal responsibility of the individual does not exempt from administrative liability for the offense is a legal entity." Thereby the legislator emphasizes the importance of protection for the state and gravity from the point of view of harm for society of the maintenance of the protected public relations, one of which participants are legal entities. Securing Administrative Code Part 3 art.2.1 possible combinations of legal and administrative responsibility of officials should be regarded as a manifestation of yet another special consideration of the principle of production. The concept is expedient to formulate the principle two subjective responsibility, as suggested by some authors. The sense of fixing of a principle of two-subject responsibility consists that in many cases the enforcers can define the specific official with accuracy, whose actions or inaction led to commission by the legal entity of an offense. In such situation there is a question of responsibility of the similar official. In cases specially provided by the law these actions of the official form independent structure of an administrative offense. There is a two-offender legal and official. In other situations (when action of the official don't form offense structure) the corresponding official can be involved to disciplinary responsibility. It is necessary to mean that if the body represents the legal entity as a whole, the ordinary worker can enter on behalf of the organization legal relationship only on the certain site of activity corresponding to competence of the worker. The specified position has big practical value at the solution of questions of accountability of the specific official in case of simultaneous application of administrative punishment to the organization. It is necessary to indicate to such important component of production on cases of administrative offenses, as profitability of production. First of all it is connected with specifics of attraction to administrative responsibility and can be added with the concept "production efficiency". Principle of profitability and production efficiency on cases of administrative offenses with reference to individuals «speed of production» is, as a rule, supplemented with category. Speed, in particular, is shown in establishment enough short terms of consideration of similar categories of affairs under condition of achievement of the corresponding purposes and tasks. It is meant that the purposes and problems of production should be reached not only the smallest means, but also in the shortest term as not only means, but also time of their appendix have essential value for determination of production efficiency. As to production with participation of legal entities, speed of production won't represent itself as its characteristic features. Confirmation to that is limitation period establishment till one year just in those spheres, where the most typical offenders are legal entities (p.1 art.69 CAO). However, the principle of economy and efficiency of the cases on administrative offenses of legal persons is directed to provide such a process organization, which does not require a lot of material costs and at the same time ensure its movement without excessive burdens members of production. Scientists allocate also other principles of administrative and jurisdictional process underlying attraction to administrative responsibility of citizens. Among them it is possible to call conducting production in a state language, immediacy and continuity of the process, independence and competence of decision-making, etc. Without belittling value of the called principles for production on cases of administrative offenses, it should be noted that with reference to production with participation of legal entities, they won't have character of the defining. Thus especially it is necessary to emphasize that it is impossible to endow for the sake of publicity truth, for the sake of efficiency – legality. Only consecutive realization of all principles corresponds to the democratic nature of production and allows to reach the process purposes in the best way. Production on cases of administrative offenses of entities is based on fixed or reflected in rules of law systems of leading ideas, basic provisions, and establishments. Thus principles define essence of the organization and activity of all control and supervising and jurisdictional bodies at all stages of considered production. Production principles on cases of administrative offenses of legal entities are connected among themselves, they are carried out in continuous unity, forming harmonious system of the beginnings of production. The current state of the Kazakhstan legislation regulating questions of involvement of legal entities to administrative responsibility, allows to allocate group of the general and special principles. If the general principles can be equally carried to production on cases of administrative offenses of individuals, special principles are inherent only in production in the relation entities.