Адміністративне право і процес - ISSN - 2227-796X

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LEGAL NATURE OF THE ADMINISTRATIVE TORT LAW OF UKRAINE - Kolpakov V.

The article deals with the legal nature of the administrative tort law of Ukraine. To that end, studied the signs of the administrative tort. The author distinguishes between a posteriori and a priori signs of administrative tort. Posteriori signs are fixed by law. These features — the truth of facts. They are the same for any behavioral act. A priori characterize the individual behavioral act. They are the result of the analysis of a particular behavioral act. These features — the truth of logic. They allow to characterize behavioral act as an administrative tort. The article deals with their classification according to the degree of public danger; the nature of the damage caused; guilty subjects; structural features; regulation in the legislation. The author proves that a set of a priori evidence of individual behavioral act is a system. 

An understanding branch of law gives the knowledge of the characteristics of social relations, that the industry is regulated. The action legal norm transforms the social relations in the legal relationship. The totality of these re­lations constitutes the subject branch of law.

Present-day Ukrainian administrative law fundamen­tally requires definition of its subject-matter. Bringing it to correspondence with up-to-date realties will become an important step towards reformation of administrative-legal institutions and bringing white light to their role in evolution of the processes of formation of law-bound state and development of civil society.

For the modern Ukrainian administrative law correct­ness of the subject branch of law is of fundamental im­portance. Its establishment in line with modern realities is an important step towards the reconstruction of the admi-nistrative and legal institutions and objective coverage of their role in the evolution of the formation of the rule of law and civil society.

In the Soviet period the of the subject branch of ad­ministrative law officially recognized relationship in the field of public administration. The evolution of admini-strative law in Ukraine under the influence of the stan­dards of the European administrative space formed the subject of a new concept of administra­tive law [1].

Subject-matter of administrative law includes four types of relations. First, these are relations of public administration that involve the whole aggregate of adminis­terial relations. Secondly, these are rela­tions occurring in the process of delivery of justice in the form of administrative le­gal proceedings. These are relations of au­thority carriers’ responsibility for wrong acts. Thirdly, these are relations of respon­sibility for violation of rules in effect, or relations of administrative responsibility (administrative-delict relations). Fourthly, these are relations occurring in the result of individual addresses to public adminis­tration bodies for the purpose of realiza­tion of individuals’ rights (relations of ad­ministrative service). Fifth, it is relations of indirect authority (occurring in the re­sult of mutual observance of administra­tive rules by subjects who are not bound by powers and authority) [2, p. 67].

This article examines the legal na­ture of the third kind of relationship: the relationship of administrative responsi­bility (administrative and tort relations).

The doctrine of administrative of­fense is a major component in the con­cept of an administrative tort law. Principal importance for determining the role of an administrative offense in aggregate of all the actions prohibit­ed by law, determines the fact of fixa­tion in the Constitution of Ukraine le­gal liability for such acts [3, с. 84–90]. Accordingly, the study of administrative offenses is an important task of science of administrative law. Fundamental the­oretical research has differentiated attri­butes of administrative tort on a posteri­ori and a priori.

A posteriori signs are fixed by law. These features — the truth of facts. They are the same for any behavioral act. A priori characterize the individual be­havioral act. They are the result of the analysis of a particular behavioral act. These features — the truth of logic. They allow to characterize behavioral act as an administrative tort.

The doctrine of the attributes of an administrative tort has important theo­retical and practical significance. Firstly, it facilitates identification and classifica­tion of the most significant features of antisocial acts, helps in establishment of fair sanctions; secondly, it assists law en­forcement authorities to properly quali­fy offenses, thus setting adequate influ­ence measures; thirdly, makes possible to understand the law, support training of lawyers, and promotes legal culture of citizens [4].

Generally, the combination of ele­ments is the description of act in the law. Description of an action not yet com­mitted, but only possible or supposed. In practice, only legally significant fea­tures characterizing act as an offense, goes down for such a description. They have been named the structural features. The main source of this description is the Code of Ukraine on Administrative Offences (hereinafter the CAO) [5]. Elements features may be permanent and variable.

Permanent features received gener­al recognition in legislation, legal the­ory, and social practice. For example, «age of administrative responsibility», «witness», «vehicle», «pedestrian», «firearm», «afforestation», «intellectu­al property», «building», «official» and so on. Variable features can change their meaning quite often. By rule, these fea­tures are contained in regulations.

For example, the law established the responsibility for violation of in­fringement of sanitary rules (Art. 42) [6] Infringement of rules of trade by alco­holic drinks (Art. 156), public welfare (article. 152), holding dogs and cats (Art. 154), health facilities and lines of com­munication (Art. 147) and so on. These rules can be set, changed, canceled by the relevant authority, what results in changes of the respective compositions.

Assessment features are widely used in description of essential elements. The content of such features in statute is not clearly defined, thus the question of their presence or absence is under law enforcement officials consideration.

Therefore, theoretical studies play an important role in revealing of their content. Such features, as «gross viola­tion» (Articles 85, 108), «Arbitrariness» (Article 186), «emergency situation» (Articles 127, 140), «provision of nec­essary conditions for living, training and education» (Article 184), «prodigal ex­penditure» (Articles 60, 98), «misman­agement maintenance» (Article 150), «mismanagement» (Art. 164-2), «de­vices similar to markings», «objects that contribute crowded birds hazard­ous to aircraft flight «(Art. 111), «insul-ting molestation to citizens», «similar actions» (Article 173) states that «of­fends human dignity and public moral­ity «(Article 178), «persistent disobedi­ence» (Article 185), «willful evasion» (Articles 185-3, 185-4), «reasonable ex­cuses» (Article 210) and so on.

Features could be distinguished by the degree of generalization [3]. In this case, it is referred to the following fea­tures: a) general; b) generic or specific; d) specific or individual.

Common characteristics for all es­sential elements (illegality, sanity, fault etc.).

Generic (specific) are typical for the group of elements. For example, es­sential elements, that describe viola­tions in the field of standardization, pro-duct quality, metrology and certifica­tion. Social relationships that develop in this area are the specific object of enc­reachments in this case.

Specific (individual) describes sepa­rate specific elements «expansion of in­veracious hearings» (Art. 173), «stow­away travel» (Art. 135), «prostitution» (Art. 181-1), «silence in public places» (Art. 182), «narcotic substances in small sizes» (Art. 44), «organization of street procession» (Art. 185-1),» contempt of court» (Art. 185-3).

The Code of Ukraine on Administra-tive Offences: Official Bulletin of the Verkhovna Rada of Ukrainian SSR, 1984, annex to No. 51, Article 1122 (Brought into force by Resolution of the Verkhovna Rada of Ukrainian RSR, 1984, annex to No. 51, Article 1122.

The source of these articles is the Code of Ukraine on Administrative Offences, unless otherwise is noted.

Essential elements of administrative offenses classifies depending on: 1) the degree of public danger — on basic and qualified; 2) the nature of damage — on material and formal; 3) the subject of an offense — on private and official (service); 4) the structure — on alter­native and definite; 5) the design featu-res — on descriptive and blanket (ref­erential) [7].

Let’s examine characteristics of each type of essential elements of administra­tive offenses [8].

1. Basic and qualifying elements

Recognizing this, or that act as an ad­ministrative offense and imposing sanc­tions for violation, the legislator consid­ers that the degree of public danger of similar offences may be different.

Thus, infringement by drivers of ve­hicles of railway crossings rules charac­terized by greater public danger while providing services for passengers or dan­gerous cargo transportation (Art. 123).

Due to this fact in several cases le-gislator, considers several essential ele-ments of administrative offenses, belong to the same type of actions. These ele-ments vary the degree of public danger. Any additional features called quali-fying are indicating a higher degree of danger.

Thus, features may be basic, such as occuring in every offence of commit­ment of offence and qualifying, such as supplements the basic features.

Basic features in their turn form the so-called general essential element of an offence. If necessary, legislator comple­ments essential elements with qualify­ing features, thus an act can be qualified under another article that imposes strict­er punishment. Essential elements, with such features are named qualifying.

In the Code may appear such a quali-fying feature as replication (Articles 44-2, 95, 104), an emergency situation (Articles 122, 127, 140), the presence or possibility of harmful material con­sequences (Articles 128-1, 140), state of drunkenness (Art. 127), leaving of a place of road traffic accident (Art. 122-4), a gross violation of rules (Art. 85), act committed by official (Articles 93, 95-1, 107-1).

2. Material and formal elements

Material essential elements con­tain such features, as A) occurrence of harmful material consequences caused by committed act. For example, forest damage by sewage, caused its shrink­age (Art. 72), infringement of require­ments of fire safety in woods (Art. 77), abduction of other’s property (Art. 51); B) describes action that necessarily leads to harmful effects, despite they are not identified by the law: breach of law of a state ownership on bowels (Art. 47); excess of limits and specifi­cations of use of natural resources (Art. 91-2); prodigal expenditure of fuel and energy resources (Art. 98); sale of products in violation of the require­ments for health warnings on tobacco products (Article 168-2).

To the formal (conditional term) be­longs such elements that have no fea­tures of harmful material consequences. For example, residing without registra­tion of location (Art. 197), infringement of a frontier regime (Art. 202), illegal withdrawal of passports in mortgage (Art. 201).

Completing the description of mate­rial and formal essential elements of ad­ministrative offenses is important to note, that the criminal law concludes slight­ly different meaning in their concepts. Under the material elements herein un­derstands those in which the end of crime is associated with the occurrence of so­cially dangerous consequences (a person can be attracted for murder only if in re­sult of his actions someone’s death oc­curred); formal elements are those, where the occurrence of socially dangerous consequences is not a feature, i.e. recog­nition of crime with such essential ele-ments requires only the establishment that the committed act is prohibited by the law. These crimes include, for exam­ple, illegal possession of firearms.

3. Service and private elements

Essential elements of administrative offenses are divided into private and service (civil), depending on the sub­ject of the offense, whether is he/she a civilian citizen or an official (Articles 93, 96, 99). The main characteristic of service offence is that the unlawful act should be committed through the ser­vice action [9, p. 32–34]. According to the Article 14 of the CAO, officials are subject to administrative responsibili­ty for noncompliance with established rules, resulting from the performance of his/her official duties. Thus, ac­cording to the Article 185-2 (Creation of conditions for the organization and conduct with infringement of the es­tablished order of assembly, meetings, street campaigns or demonstrations) establishes administrative liability for officials if they provide premises, transport, facilities for conduct with in­fringement of the established order of assembly, meetings, street campaigns or demonstrations.

4. Definite and alternative elements

Division of essential elements on definite and alternative has a great practical value. Definite elements de­scribe features of one act within the frameworks of one article of a regula­tion. For example, finishing of a minor to a state of intoxication (Art. 180), mi­nor hooliganism (Art. 173), prostitu­tion (Art. 181-1), and trade from hands in unstated places (Art.160).

Alternative elements describe sever­al actions within the frameworks of one Article of regulation. Herewith, an act considered as an offence if one, several (or even all) actions have been committed. For example, Art.189-1 of the CAO stipu­lates that a breach of earlier approved: — norms of extraction, — an established ac­counting procedure, as well as failure of proper storage conditions of extracted pre­cious metals and precious stones, precious stones of organogenic origin and semi-precious stones, established account pro­cedure as well as violation of all specified above by the extraction subject should be considered as an offence.

As a separate offence it should be considered separately a breach of the es­tablished account procedure, violation of the established order of registration, failure to provide proper storage condi­tions for extracted precious metals, and violation of all the specified procedures together. Additionally, in this article we find an alternative offence items: it re­fers to rules concerning precious metals, precious stones, stones of organogenic origin, semi-precious stones.

Alternative elements are contai-ned in Articles 171 «Infringement of rules of manufacture, repair, sale and hire of means of technical equip­ment», 173-2 «violence over family de­fault of the protective instruction» 177-2 «Manufacturing, purchase, storage or realization of the falsified alcohol­ic drinks or tobacco products», 186-3» Infringement of the order of represen­tation or use of the given State statisti­cal supervision» 189-2 «Infringement of rules of manufacturing and the order of the account and storage of seals and stamps, and as manufacturing, import, realization and uses of self-type-setting press» and others.

Thus, in such cases essential ele­ments are the commitment of various ac­tions, named in the law. At the same time, for performance of essential elements it doesn’t matter if one, two, or all actions together have been committed. It is im­portant to note, that a person is not com­mitting a new offense if he/she consis­tently performs all actions named in the law, for example, initially illegal pur­chase, than storage and transfer of nar­cotic substances (Art. 44 of the CAO). If a citizen drinks alcohol beverages in pub­lic place and after appears in public place in a state of intoxication, that offends hu­man dignity and public morality, in this case he/she commits one, but not two of­fenses (Art. 178 of the CAO). Separate actions of the same person, both manu­facturing and selling of the forbidden in­struments of getting objects of animal or flora, compose essential elements of one offence (Art. 85-1 of the CAO).

Thus, if the definite essential ele­ments name those common features they consist of, then instead the alterna­tive elements have several features vari­ants. Frequently this characteristic of features description is caused by the de­sire of legislator to avoid general formu­lation, as well as to reveal the content of these features and specify it. And in some cases, the design of the alternative features is linked to the desire of author­ities to save normative material and, in­stead of several articles creation, to cre­ate a single, but broader in its scope.

5. Descriptive and blanket (referen­tial) elements

Descriptive essential elements that re­veal the content and nature of an act in the full scope are recognized as an ad­ministrative offense. For example, minor hooliganism (Art. 173), drinking beer, alcohol, alcoholic beverages on manu­facturing (Art. 179), an inveracious call of special services (Art. 183), intention­al damage of passport (Art. 198). Article with the descriptive essential elements contains all of the three elements of legal norms (hypothesis, disposition and sanc­tion). In this case, the logical structure of standards of law coincides with structure of an article of a legal act. The main pur­pose of such a development of normative materials is to promote individuals that apply for a provision with the possibility to find in appropriate article all necessary structural elements.

Blanket (or referential) elements contain a reference to related regulatory act that is necessary for establishment, if there is a lack of corpus delicti in actions or not. There are three types of such refe-rences known.

First, it refers to a specific article of the same regulation, containing missing data of legal norms. For example, consi-dering nature of committed offense and offender’s personality to specified per­sons (except persons who committed an offense under Article 185 measures of influence defined by Article 13 of CAO can be applied; penalties for an offense covered by Article 164-14, could be im­posed within three months, from the day it was first detected Art. 38; small-sized vessels in the first, third, fourth and fifth paragraphs of an Article 116, se-cond paragraph of an Article 116-1, third paragraph of Article 116-2, first para­graph of an Article 117, third paragraph of Article 118, paragraph three of Article 129, paragraph five of Article 130 of this Code should be understood as a self-propelled vessels with the main engines power less than 75 hp (Art.116); State in­spectors of Agriculture sphere have the right to constitute reports on adminis­trative violations, within the jurisdiction of the authorities referred to in Articles 222–244-19 (Art. 255); things and doc­uments which are tools or direct object of an offense and items that were found during detention, personal inspection or required inspection, subject to withdraw­al by officials specified in articles 234- 1, 234-2, 244-4, 262 and 264 (Art. 265); in the circumstances referred to in para­graphs 5, 6 і 9 Art. 247, agency (official) that ordered the imposition of admini-strative penalties, terminates its execu­tion (Art. 302).

Second, it refers to another regula­tion. For example, infringement of rules of protection of electric networks (Art. 99); excess by drivers of vehicles of speed of movement, default of signals of regulation of traffic, infringement of rules of transportation of people and other traffic rules (Art. 122); infringe­ment of Rules of protection of the main pipelines (Art. 138); failure of chief and other officials of State authorities, in­stitutions and organizations, including the branches of the National Bank of Ukraine, commercial banks and other fi­nancial and credit institutions, the legal requirements of officials of the income and charges referred to in sub-para­graphs 20.1.3, 20.1.24, 20.130, 1/20/31 of paragraph 20.1 of Art. 20 of the Tax Code of Ukraine (Art. 163-3); violation by individual of statutory restrictions on business or other paid activities (Art. 172-4); violation of the rules of admin­istrative supervision (Art. 187).

Third, it refers to several different regulations. For instance, infringement of conditions and rules of realization of the international automobile transporta­tion of passengers and cargo (Art. 133- 2); infringement of rules, norms and standards at the maintenance of high­ways and roads (Art. 140); infringement of rules of an accomplishment of territo­ries of cities and other settlements (Art. 152); infringement of the legislation of budgetary system of Ukraine, purchase in advance of the goods, works and ser­vices for public funds (Art. 164-12); release and realization of production which does not meet the requirements of standards, non-standard production, cer­tificates of compliance, regulations and samples (standards) for safety, quality, completeness and packaging (Art. 167).

In such cases, essential elements are «collected» from several different inde­pendent offences. This is the violation of various acts, regulations and require­ments. Using formal approach in this case it is not difficult to indicate several offens­es. For example, the infringement of the established rules and mode of operation of installations and manufactures from pro­cessing and recycling of waste (Art. 82). Moreover, legislator considers all these acts, as one offense. The basis of this ap­proach is the likeness of these acts, so they are identical and have one and the same le­gal features of an essential element.

It should be also noted, that in one blanket construction of an essential ele­ment of an offence, a number of different references types could be combined. As an example Article 125 «Other infringe­ments of traffic rules», establishes viola­tions of traffic rules, except foreseen by Articles 121-128, part first and part second of Art. 129, Articles 139, 140 of the CAO. Article 212-10, establishes restrictions on campaigning: campaigning person, whose participation in the election cam­paign is prohibited by law, campaigning beyond the terms established by law, or in places prohibited by law, campaigning in ways and means that are contrary to the Constitution and Laws of Ukraine, or oth­er breach of statutory restrictions on cam­paigning, except foreseen by Articles 212- 9, 212-13 and 212-14 of the Code.

In addition to these, the classification base of essential elements of adminis­trative offences could be amended with other criteria. According to this feature of the subjective side, as a form of fault, offenses can be divided into intentional and reckless, and on the basis of motives into acquisitive and altruistic etc.

The foregoing gives rise to the con­clusion that the legal nature of admin­istrative delicts (administrative tort, administrative offenses) in the admini-strative law of Ukraine is the criminal law.

Список використаних джерел:

1. Колпаков В. К. Роль конвергенції у формуванні стандартів європейського адміністративного простору / В. К. Кол- паков // Сучасна адміністративно-пра- вова доктрина захисту прав людини : тези доп. та наук. повідомл. наук.-практ. конф. м. Харків 17–18 квіт. 2015 року — Х. : Право, 2015. — 13–17.

2. Kolpakov V. Subject matter of Ukrainian administrative law: the concept evolution / Valerii Kolpakov // Scientific Letters of Academic Society of Michal Baludansky. — Slovakia, Košice : Academic Society of Michal Baludansky, 2014. — No 2. — P. 66–68.

3. Адміністративно-правове регулю- вання публічного адміністрування в Ук- раїні : навч. посіб. / [О. Г. Бондар, Т. О. Ко- ломоєць, В. К. Колпаков та ін.] — Запоріжжя : ЗНУ, 2014. — 204 с.

4. Коломоєць Т. О. Вступ до навчально­го курсу «Адміністративне право України»: навч. лекція / Т. О. Коломоєць, В. К. Кол- паков — К. : Ін Юре, 2014. — 240 с.

5. Кодекс України про адміністратив­ні правопорушення : Введений в дію Постановою Верховної Ради Української РСР від 07.12.1984 // Відомості Верховної Ради Української РСР — 1984. — додаток до № 51. — Ст. 1122.

6. Колпаков В. К. Адміністративна де­ліктація поняття і критерії / В. К. Колпа- ков // Людина, суспільство, держава : пра­вовий вимір в сучасному світі : Матеріали IV Міжнародної науково-практичної кон­ференції, м. Київ, Національний авіацій­ний університет, 27 лютого 2014 р. — С. 184–186.

7. Колпаков В. К. Теорія адміні­стративного проступку : Монографія / В. К. Колпаков, В. В. Гордєєв. — Х. : Харків юридичний, 2016. — 344 с.

8. Kolpakov V. Essential elements of an administrative offense: concept and types [electronic resource] / Valery Kolpakov // Journal of High Qualifications Commission of Judges of Ukraine, 2014. — Access mode : http://www.vkksu.gov.ua/ua/about/vis­nik-vishoi-kvalifikatsiynoi-komisii-suddiv-ukraini/essential-elements-of-an-administra­tive-offense-concept-and-types/

 

9. Kolpakov V. K. A priori determinants of administrative tort / V. K. Kolpakov // Вісник Запорізького національного університету: Збірник наукових статей. Юридичні нау- ки. — Запоріжжя: Запорізький національний університет, 2014. — № 3. — С. 130–136.

 

 

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