Application to the arbitration court on an administrative offense
1. A decision on a case on contesting a decision of an administrative body on bringing to administrative responsibility shall be taken by an arbitration court in accordance with the rules established in Chapter 20 of this Code.
2. If, when considering an application to challenge the decision of an administrative body to bring to administrative responsibility, the arbitration court establishes that the disputed decision or the procedure for its adoption does not comply with the law, or there are no grounds for bringing to administrative responsibility or applying a specific measure of responsibility, or the contested the decision is made by a body or an official in excess of their authority, the court decides to recognize the contested decision as illegal and to cancel the contested decision in whole or in part, or to change the decision.
3. If, when considering an application to challenge the decision of an administrative body to bring to administrative responsibility, the arbitration court establishes that the decision of the administrative body to bring to administrative responsibility is lawful and justified, the court shall decide to refuse to satisfy the applicant's claim.
4. The operative part of a decision in a case challenging the decision of an administrative body shall contain:
1) name, number, date and place of adoption, other necessary information about the contested decision;
2) the name of the person brought to administrative responsibility, his location or place of residence, information about his state registration as legal entity or individual entrepreneur;
3) an indication of the recognition of the decision as illegal and its cancellation in whole or in part, or in the refusal to satisfy the claim of the applicant in whole or in part, or in the measure of responsibility, if it is changed by the court.
5. The decision of the arbitration court shall enter into force upon the expiry of ten days from the date of its adoption, unless an appeal has been filed.
In case of submission appeal the decision, unless it is changed or canceled, shall enter into force from the day the decision is adopted by the arbitration court of the appellate instance.
5.1. The decision on the case on contesting the decision of an administrative body on bringing to administrative responsibility, if the amount of the administrative fine for an administrative offense does not exceed one hundred thousand rubles for legal entities, five thousand rubles for individual entrepreneurs, may be appealed to the arbitration court of the appellate instance. Such a decision, if it was the subject of consideration in the arbitration court of the appellate instance, and the decision of the arbitration court of the appellate instance adopted in this case, may be appealed to the arbitration court of the cassation instance only on the grounds provided for by Part 4 of Article 288 of this Code.
In other cases, decisions on cases on contesting decisions of administrative bodies on bringing to administrative responsibility are appealed in the manner prescribed by Article 181 of this Code.
5.2. Writ of execution based on judicial act arbitration court in the case of contesting the decision of an administrative body on bringing to administrative responsibility is not issued, enforcement is carried out directly on the basis of this judicial act.
6. A copy of the decision shall be sent by the arbitration court within three days from the date of its adoption to the persons participating in the case. The arbitration court may also send a copy of the decision to a higher administrative body in the order of subordination.
Heading:Below is a sample of a complaint compiled by us to the Arbitration Court against a decision to bring the HOA to administrative responsibility under Art. 7.23 of the Code of Administrative Offenses of the Russian Federation - for violation of the regulatory level or regime for providing the population utilities).
When filing a complaint against administrative order to the Court of Arbitration in any case concerning administrative offense never neglect the professional help of a lawyer (attorney), because each situation has its own characteristics, without taking into account which it is impossible to form the correct legal position and a sufficient evidence base - the key to a quick and positive outcome of the case for you! We are ready to give you legal advice on the case in relation to your specific situation (how, in your case, to correctly file a complaint against an administrative decision to the Arbitration Court, what evidence to present, and, if necessary, to represent your interests in the arbitration court when considering a complaint).
To the Arbitration Court of the Novosibirsk Region
(630102, Novosibirsk, Nizhegorodskaya st., 6)
Applicant: Homeowners Association "_______"
legal address: _______________
Chairman: ________________________
Administrative body, State Housing Inspectorate
hosted in the Novosibirsk region
contested decision: Novosibirsk, Krasny prospect, 18
STATEMENT
(on challenging the decision to bring to administrative responsibility)
Decree of the head of the state housing inspection of the Novosibirsk region Ryaskin V.V. dated __________ 2012, the Homeowners Association "___________" was brought to administrative responsibility under Art. 7.23 of the Code of Administrative Offenses of the Russian Federation and he was sentenced to a fine of 5,000 (five thousand) rubles. We do not agree with the said resolution, we consider it illegal and subject to cancellation on the following grounds.
I
According to paragraph 1 of Article 1.6 of the Code of Administrative Offenses of the Russian Federation, no one can be subjected to administrative punishment except on the grounds and in the manner prescribed by law.
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 petitions 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 (part 1 article 25.1 of the Code of Administrative Offenses of the Russian Federation).
In accordance with Part 2 of Art. 25.1 of 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 proceedings are being conducted in the case of an administrative offense. In the absence of the specified person, the case may be considered only in the cases provided for by Part 3 of Article 28.6 of the Code of Administrative Offenses of the Russian Federation, or if 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 request to postpone the consideration of the case, or if such a request was left without satisfaction.
Based on the provisions of h. 2 Article. 25.1 of the Code of Administrative Offenses of the Russian Federation with the right of the person in respect of whom proceedings are being carried out on an administrative offense to participate in the consideration of the case and be present at the court session corresponds to the obligation of the person considering the case of an administrative offense to provide this person with such an opportunity.
Thus, from Part 1 and Part 2 of Art. 25.1 of the Code of Administrative Offenses of the Russian Federation, the obligation of the person considering the case of an administrative offense follows the obligation to create the conditions necessary for the person brought to administrative responsibility to exercise his right to defense, including by means of his timely notification of the place and time of the case and provide him with the opportunity to participate in the court session. In part 2 of Art. 25.1 of the Code of Administrative Offenses of the Russian Federation, the legislator points not just to the notification of a person about the consideration of an administrative case, but to a “proper” notification. The notification must be “proper” in order to ensure that the person has all the rights guaranteed by the state when considering an administrative case, the result of which (in relation to the dispute under consideration) is the issuance of a decision on bringing to administrative responsibility. Proper notification means providing a person with the opportunity to exercise the rights established by law (part 3 of article 24.3, part 1 of article 24.4, part 1 of article 25.1 of the Code of Administrative Offenses of the Russian Federation). Proper notification of a person about the consideration of an administrative case ensures a balance between the right of the state to bring a person to administrative responsibility (i.e., recognizing a person as guilty of an administrative offense) and the obligation of the state to ensure that the person held accountable complies with all guarantees provided for by law.
Thus, based on the meaning of the norm, Part 2, Art. 25.1 of the Code of Administrative Offenses of the Russian Federation, an administrative body has the right to make a decision on a case of an administrative offense only if the person held liable is duly notified in the prescribed manner.
Meanwhile, in violation of the above norms of the law, information about the time and place of the consideration of the case on an administrative offense was received by the Applicant on the day of the consideration of the case and even after the appointed time for its consideration (December 11, 2012 at 14:30), due to with which the Applicant cannot be considered properly notified of the consideration of the case on an administrative offense. Being unknown, the Applicant was not able to exercise his rights under the law. Violation of the requirements of the law on the timely notification of a person brought to administrative responsibility about the time and place of the consideration of the case is a significant violation of the procedure for bringing to administrative responsibility, and therefore causes illegality adopted resolution in an administrative case.
II
In essence, in the actions of the HOA “_________” there is no composition of an administrative offense under Art. 7.23 of the Code of Administrative Offenses of the Russian Federation for the following reasons.
The objective side of the specified structure of an administrative offense consists in violation of the normative level or regime for providing the population with communal services.
According to paragraph 1, paragraph 3 of Art. 26.1 of the Code of Administrative Offenses of the Russian Federation in a case of an administrative offense are subject to clarification, including questions about the existence of an event of an administrative offense and the guilt of a person in committing an administrative offense, as well as other circumstances that are important for correct resolution affairs.
By virtue of the requirements of Art. 1.6. of the Code of Administrative Offenses of the Russian Federation, a person brought to administrative responsibility may not be subjected to administrative punishment and measures to ensure proceedings in a case of an administrative offense otherwise than on the grounds and in the manner prescribed by law.
By virtue of h.1 Article. 1.5 of the Code of Administrative Offenses of the Russian Federation, a person is subject to administrative liability only for those administrative offenses in respect of which his guilt has been established.
Clarification of the guilt of a person in committing an administrative offense is carried out on the basis of the data recorded in the protocol on an administrative offense, explanations of the person in respect of whom proceedings are being conducted on an administrative offense, including the lack of the ability to comply with the relevant rules and norms, on the adoption of all from him measures to comply with them, as well as on the basis of other evidence, under Part.2 Article. 26.2. Code of Administrative Offenses of the Russian Federation.
According to Part 2 of Art. 2.1. of the Code of Administrative Offenses of the Russian Federation, a legal entity is found guilty of committing an administrative offense if it is established that it had, in order to comply with the rules and norms, for violation of which the Code of Administrative Offenses of the Russian Federation or the laws of the subject Russian Federation administrative responsibility is provided for, but this person did not take all measures depending on him to comply with them.
Supply of hot water utility services to house No. _____ on the street. ____________ in Novosibirsk is carried out not by the Applicant, but by JSC "SIBEKO". On October 5, the Applicant applied to the State Housing Inspectorate for VAT, and directly to the supplier of hot water supply JSC "SIBEKO", and to other regulatory and supervisory authorities (to the prosecutor's office, to the mayor of Novosibirsk, to the West Siberian Department of Rostekhnadzor) with statements, in which he pointed to insufficient relatively standard temperature coolant in the house for hot water since May 2012. However, no measures were taken to eliminate the violations, and the appeals were actually ignored. The direct provider of utility services for hot water supply in the house number __ on the street. ______________ is not the Applicant, but OJSC "SIBEKO". The Applicant's obligation is to properly maintain the common house equipment that ensures the delivery of hot water utility services to consumers. Conformity house equipment the requirements for it is confirmed by the act attached to this application hydraulic tests dated August 30, 2012.
Under such circumstances, the Applicant has taken all measures in its power to prevent violation of the requirements of the law in the field of providing citizens with public services of hot water supply of proper quality.
Accordingly, there is no fault of the Applicant in committing an administrative offense under Art. 7.23. Code of Administrative Offenses of the Russian Federation.
In accordance with paragraph 4 of Art. 210 of the Arbitration Procedure Code of the Russian Federation in cases of contesting decisions of administrative bodies on bringing to administrative responsibility, the obligation to prove the circumstances that served as the basis for bringing a person to administrative responsibility rests with the administrative body that made the contested decision. A similar provision is provided for in paragraph 3 of Article 1.5. Code of Administrative Offenses of the Russian Federation. The Applicant believes that the administrative body has not provided evidence to confirm his guilt in the said offense, which is the basis for canceling the contested decision.
Based on the above and, guided h. 3 Article. 30.1 of the Code of Administrative Offenses of the Russian Federation,
ASK:
cancel the decision of the head of the state housing inspection of the Novosibirsk region Ryaskin V.V. dated December 1, 2012 on bringing the Association of Homeowners "___________" to administrative responsibility under Art. 7.23 of the Code of Administrative Offenses of the Russian Federation and appointment administrative punishment in the form of a fine in the amount of 5,000 (five thousand) rubles.
APPENDIX in copies:
1. Decree of the head of the state housing inspection of the Novosibirsk region Ryaskin V.V. dated __________ 2012 on bringing the Association of Homeowners "__________" to administrative responsibility under Art. 7.23 Administrative Code of the Russian Federation
2. Certificate of state registration of the applicant
3. Charter of the applicant
4. Solution general meeting on the election of the chairman of the HOA "___________"
5. Extract from the Unified State Register of Legal Entities in respect of the applicant
6. Receipt of sending a copy of this complaint to the GZhI for NSO
7. Act of hydraulic testing of user equipment
8. HOA statement"___________" dated October 5, 2012 in the GZhI for VAT
9. Application of the HOA "___________" dated October 5, 2012 to JSC "SIBEKO"
10. Application of the HOA "___________" dated October 5, 2012 to the prosecutor's office of Novosibirsk
11. Application of the HOA "___________" dated October 5, 2012 to the mayor's office of Novosibirsk
12. Application of the HOA "___________" dated October 5, 2012 to the West Siberian Department of Rostekhnadzor
2013
Chairman of the HOA "___________"
___________ _______________
Please use the following Complaint Form administrative case(according to Article 7.23 of the Code of Administrative Offenses of the Russian Federation - for violation of the regulatory level or regime for providing the population with public services) in Word format!
Chapter 23 of the Code of Administrative Offenses of the Russian Federation provides for bodies, officials authorized to consider cases of administrative offenses. In case of bringing organizations, individual entrepreneurs to administrative responsibility in connection with the implementation of entrepreneurial and other economic activity the said persons shall have the right to challenge the decision (decision) of the relevant body in the arbitration court, official.
A person recognized as a victim in accordance with Art. 25.2, 28.2 of the Code of Administrative Offenses of the Russian Federation, has the right to apply to the arbitration court with an application to challenge the decision of the administrative body in the case of an administrative offense committed by an organization or an entrepreneur, since the said decision affects his rights and legitimate interests. The same right belongs to the prosecutor (Article 25.11 of the Code of Administrative Offenses of the Russian Federation).
This category of cases is considered by the arbitration court according to general rules claim production with some features. Proceedings in this category of cases are initiated on the basis of an application by a legal entity or an individual entrepreneur. The application must contain a demand to recognize the contested decision of the administrative body as illegal and to cancel this decision (change).
An application for contesting the decision of an administrative body on bringing to administrative responsibility is filed with the arbitration court at the location or place of residence of the applicant.
Submission of an application with a missed deadline or refusal to restore this deadline is the basis for refusing to satisfy the application.
The arbitration court, at the request of the applicant, may suspend the execution of the contested decision on administrative penalty. It means that authorized body or an official does not have the right to take any action to enforce the appealed decision (decision). The suspension of the execution of the decision and the period of suspension for the judge of the arbitration court may be indicated in the ruling on accepting the case for proceedings. The suspension of the execution of the decision ends with the expiration of the suspension period, if the application of the organization or individual entrepreneur is left unsatisfied.
In this case, the limitation period for the execution of the decision is also suspended (Article 31.9 of the Code of Administrative Offenses of the Russian Federation).
General requirements to the application set out in Art. 125 APC RF.
The application must be accompanied by:
The text of the contested decision (decree);
Evidence (notification of delivery or other document) of sending a copy of the application to the body, official that made the controversial decision.
Failure to comply with the requirements for filing an application entails the consequences provided for in Art. 128, 129 of the Arbitration Procedure Code of the Russian Federation, - leaving the application without movement, return of the application. An application submitted in compliance with all requirements is accepted for proceedings, on which the judge alone issues a ruling. No later than the next day, copies of the ruling shall be sent to the persons participating in the case.
The ruling must also indicate the actions of the parties to prepare the case for trial. Taking into account the shortened period for consideration of cases of this category, notification of the participants in the arbitration process is possible by virtue of Art. 121 of the Arbitration Procedure Code of the Russian Federation by telegram, telephone message, facsimile, via Email or using other means of communication.
The arbitration court accepts for proceedings an application filed in compliance with all requirements, about which it issues a ruling, which initiates proceedings on the case. The arbitration court shall notify the persons participating in the case and others of the time and place of the court session. stakeholders. The absence of the indicated persons duly notified shall not be an obstacle to the consideration of the case. In certain cases, the arbitration court may recognize the obligatory appearance of the body, the official who made the disputed decision, as well as the person who filed the application, for giving explanations. The non-appearance of these persons is the basis for the imposition of a fine in the manner and amount established in Ch. 11 APC RF.
More on the topic § 7. Consideration of cases on contesting decisions of administrative bodies on bringing to administrative responsibility 1. Submitting an application to challenge the decision of an administrative body on bringing to administrative responsibility:
- Features of consideration of cases on contesting decisions of administrative bodies on bringing to administrative responsibility
- Contesting the decision of an administrative body to bring to administrative responsibility
- 2. Consideration of an application in a case on contesting a decision of an administrative body
- § 6. Consideration of cases on bringing to administrative responsibility 1. The jurisdiction of the arbitration court of cases on bringing to administrative responsibility
- Consideration of cases arising from administrative legal relations, on administrative offenses and on bringing to administrative responsibility
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