Американский Научный Журнал THE ROLE OF THE ADMINISTRATIVE LAW PRINCIPLES IN THE PROCESS OF REALISATION OF THE ADMINISTRATIVE LIABILITY – EVIDENCE FROM THE REGULANJRY ENFORCEMENT

Abstract. The article is devoted to the coverage of the contemporary issues of realisation the administrative liability from the perspective of appealing to administrative law principles. As a result the author outlined concrete constituents of the principles of administrative law in the process of realisation of the administrative liability. Скачать в формате PDF
4 American Scientific Journal № ( 28) / 2019

ИСКУССТВОВЕДЧЕСКИЕ И ГУМАНИТАРНЫЕ НАУКИ

THE ROLE OF THE ADMI NIST RATIVE LAW PRINCIPLE S IN THE PROCESS OF REALISATION
OF THE ADMINISTRATIV E LIABILITY – EVIDEN CE FROM THE REGULANJ RY
ENFORCEMENT

Ivantsov Volodymyr Oleksandrovych
PhD in Law, Associate Professor
Kharkiv National University of Internal Affairs, Kharkiv
postd octoral student of the Department for the
Organization of Educational and Scientific Training

Abstract. The article is devoted to the coverage of the contemporary issues of realisation the administrative
liability from the perspective of appealing to ad ministrative law principles. As a result the author outlined concrete
constituents of the principles of administrative law in the process of realisation of the administrative liability .
Keywords : the principles of administrative law , administrative liabili ty, rule of law , legality , expediency,
reasonability, equitable principles, assumption of law knowledge.

So far the issue of understanding the
administrative liability is one of the most contradicting
in administrative legal science. The term
“administra tive liability” is quite actively used in
different spheres of social life which is related to its
differen t interpretation. At the same time, the legislator
while using this notion in various regulatory acts
unfortunately doesn’t give its definition. Appa rently,
the result of abovementioned can be the absence of the
unique approach to the defining the principl es of the
realization of administrative liability. In the
administrative -legal literature are arising some efforts
to observe the following notions: “principles of
administrative liability”, “principles of administrative
enforcement”, “principles of usage of administrative
penalties”, “principles of administrative and delictual
procedures”, “principles of the legislation on
administrative offences”. Ho wever, we are sure that the
relevant principles are the reflection of classification
approach for the divis ion of administrative law
principles. But it must be said that exactly the last ones
can serve as a basis for the characteristics of its role in
the process of administrative liability realization.
In general, the principles of Administrative Law
of Ukrain e are the logical reflection of the axiological
landmarks, fundamentals of organization and activity
of public administration’s subjects which are mo stly
oriented on provision of the needs of realization and
protection of citizens’ rights and freedoms in
democratic, social and legal state, they ensure the
observance of balance between public, state and private
interests in public legal sphere, they def ine the legal
basics of interaction between public state authorities
and individuals, legal entities, colle ctive entities in the
sphere of realization of functions of executive
power [1].
In its turn, the meaning of administrative law
principles during the process of the realization of
administrative liability will mark the main basics of
administrative and lega l relationships connected to
defining the administrative offenses, their qualification,
bringing to administrative responsibility, the
implementation of administrative and tort proceedings
(proceedings on administrative offenses).
So, we consider it reason able to divide the
administrative law principles, which usage is based on
the process of the realization of administrative liability
into principles of: 1) the attribution of an act to
administrative offenses; these are expediency and
validity of such assi gnment; 2) bringing to
administrative liability – legality, justice,
proportionality of the act and punishment, presumption
of innocence, presumption of law knowledge,
inevitability, equality of all before the law and the
decision -making body, objectivity, impartiality, etc.; 3)
proceedings on administrative offenses – finding out
the objective truth, equality before the law, realization
of the right t o defense and appeal, transparency,
promptness of the proceeding, continuity the
proceeding, the independen ce of the decision in the
case, responsibility for violation of the rules of
procedure and the decision taken in the case.
As the example of the prob lem issues of
administrative liability realization would be an
established practice in applying the law concerning
bringing persons to liability under the Art. 172 -6 of the
Code of Ukraine on Administrative Offences [2]
(COA). So, the problem of realizatio n of violation of
financial control requirements due to COA lays in
contradictable approach to the assessment of the
subjective aspect (state of mind) of this offence,
‘characterized by the presence of guilt in the form of
direct or indirect intent; the co mmission of this act
through negligence precludes bringing the person to
administrative liability’ [3]. The abovementioned
position causes the acceptance of controversial
decisions in this type of cases. For example, the judge
of Z arichnii District Court in the case № 591/6134/17
[4] on December 18 , 2017 cleared the proceeding on
the case against the person under the part 1 Art. 172 -6
COA due to the lack of a corpus delicti, on the grounds
that administrative material relating to a person

American Scientific Journal № (2 8) / 2019 5

according to the given compos ition of the offense has
to contain the evidence of direct or indirect intent, but
instead, none of the evidence does not refute the above
statements but it also does not prove, firstly, the
evidence that the person knew the anti -corruption
legislations’ r equirements to submit in certain terms,
namely, the declaration in the context of part 2 Art. 45
of the Law, secondly, doesn’t prove the intent of the
person concerning non committing such actions and
awareness of its il legality.
As we can see, such an app roach is rude violation
of the principle of the legal liability (one of the types of
it is administrative liability), namely “ignorance of laws
does not exempt from legal liability” (Art. 68 of the
Constitution of Ukrain e [5]).
We are sure, that only inten tionally can be done
“the submission of the deliberate misrepresentations in
the declaration of the person, authorized to perform
state or local government functions” (p. 4 Art . 172 -6
COA ). In its turn, negligence, as a form of guilt in
violation of financ ial control requirements, is typical
for untimely submission of declaration by the person,
authorized to perform state or local government
functions and also failure to notify or untimely notice
of the opening of a forei gn currency account in an
institutio n of a non -resident bank or significant changes
in the property status. For example, the subject of the
offence can forget or not know about the necessity of
submission of notice or the declaration, be wrong in
calculati ons or remembering the concrete term of
submitting the declaration or notice, etc.
Next, we’ll observe the problem issues of
realization of the administrative liability due to Art.
172 -5 COA. According to the p. 1 Art. 23 “On the
Prevention of Corruption” Law of Ukraine [6], there is
forbid den for persons, authorized to perform state
government functions or equated to them, directly or by
the help of other persons to demand, to ask, to receive
from individuals or legal entities presents for
themselves or c onnected persons, particularly in th e
context of performing activity related to performance
state or local government functions.
The wording “in the context of performing activity
related to performance state or local government
functions” can be interpret ed in different ways.
Herewith, ther e is no clarification on its content in any
regulatory requirements or recommendatory
provisions. Thus, basing on the case law concerning
bringing persons to responsibility for violation of the
restrictions on the receip t of gifts we can conclude that
they are, to put it mildly, controversial in the context of
understanding of abovementioned restriction. For
example, Taraschanskii District Court of the Kyiv
Oblast stated by the ruling dated from August 25, 2015
(case No. 379/1230/15 -п) that Social Inspector on
Environmental Protection of the State Ecological
Inspection of Kyiv region while performing his official
authorities received from the citizen the present in the
form of coupons for 200 liters of А-95 gasoline of gas
station network “Avias”, for not dr awing up the
protocol on the environment legislation violations
found on the individual entrepreneur, which results in
the imposition of a fine, in so doing broke a restriction
on getting presents, set by p. 1 Art. 23 “O n the
Prevention of Corruption” Law of Ukraine [7].
From the given example follows that performing
activity related to performance state or local
government functions is comprehended receiving the
gift for exploitation by this person his official
authoriti es in its own vested interests. This position can
not be accepted for the following reasons.
Firstly, if we look to the notion of corruption
according to Art. 1 of “On the Prevention of
Corruption” Law of Ukraine, than such actions of the
persons authorize d to perform state or local
governme nt functions contain signs of corruption, and
therefore they constitute a corrupt offense, and not an
offense connected with corruption, which is
administrative offence stipulated by Art. 172 -5 of the
COA. In turn, the s emantic content of abovementioned
court decision contains corpus delicti stipulated by Art.
368 of the Criminal Code of Ukraine (CCU) [8].
Secondly , lucrative impulse of the usage of
official authority or position mainly is the evidence for
violations in d escribed case law pattern of restric tions
on the use of official authority or position, which are
set in Art. 22 of “On the Prevention of Corruption” Law
of Ukraine.
Thirdly, such an approach to interpretation of
restriction concerning the presents getting “in the
context of performing activ ity related to performance
state or local government functions” can be used as a
legal remedy for avoidance of criminal responsibility
for receiving unlawful benefits (Art. 368 CCU),
because the notion of unlawful benefi t is almost equal
to the notion of a present, set by Art. 1 of “On the
Prevention of Corruption” Law of Ukraine.
Concordantly abovementioned violates such
general administrative law principles as rule of law and
legality. To the list of special principles of
administrative law, which are vio lated while making
appropriate decisions, should be included next
principles: expediency, reasonableness and fairness.
The described above necessitates more precise
assessment of cases being considered for the purpose of
ensuring the proper qualification o f offenses and, as a
result, ensuring the bringing of the perpetrators to their
responsibility. In its turn, the unified approach to
decision -making for the relevant category of cases
should be done by the delineation of the concepts of
"unlawful benefit" and "present". This can be realized
at the legislative level, solved by the Resolutions of the
Plenum of the Supreme Court of Ukraine or
methodological recommendations of National Agency
of the Corruption Prevention.
The influence of administrative law pri nciples can
be also followed in terms of proceedings on
administrative offenses. According to the amendments
to Art. 294 COA the prosecutor can appeal the relevant
judge's ruling only in cases, set by p. 5 Art. 7 and p. 1

6 American Scientific Journal № ( 28) / 2019
Art. 287 COA. Herewith the provisi ons of the last
article also refer to p. 5 Art. 7 COA which textually
reflects the meaning of the legality principle in
proceedings on administrative offenses. In turn,
relevant provisions is established that the prosecu tor
carries out supervision over obs ervance of the laws
when applying enforcement actions over administrative
offences by the realization of power powers to
supervise the observance of laws in the application of
coercive measures related to restrictions on personal
freedom of citizens. It me ans that the prosecutor could
realize the right to appeal in proceedings on
administrative offenses in in cases determined by law,
solely at the stage of execution of a court decision and
only on conditions that sanction restricts personal
liberty of citiz ens. However, sanctions for
administrative offenses are often not connected to the
personal liberty of citizens restrictions (for example,
offenses related to corruption, offenses in the field of
road safety, which mater ials are prepared by police
authorit ies). As a result, it is obvious that relevant
statutory concept, not taking into account the textual
image of legality principle content, eliminates the
possibility of objective determination of the case
circumstances, is in contradiction with the princip le of
court decisions appeal. Abovementioned indicates the
necessity of amendments to the current provisions of
COA.
As follows, the role of the principle of
administrative law in the process of realization of
administra tive liability, by reference to prob lems of
case law lies in the fact, that first: can act as a kind of
prism for statutory concept assessment while
classification of violations (in particular, the distinction
between administrative and criminal tortious a cts); in
the highest level define th e content of the rules of
proceedings on administrative offenses; serve as the
basis for decision -making concerning clarification
and/or correction of administrative and legal
(substantive and procedural) rules.
Finally, we should note that within the limi ts of
this research it is impossible to highlight all
problematic issues of administrative responsibility
realization. We described the general issues of
execution of administrative responsibility, the solution
of which is caused by the need of appealing t o the
principles of administrative law, that can be a basis for
the scientific research development on the
implementation of the administrative law principles in
law -enforcement activity of courts a nd subjects of
public administration.

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