A warning as a form of punishment applies only. Administrative warning

Send your good work in the knowledge base is simple. Use the form below

Good work to site">

Students, graduate students, young scientists who use the knowledge base in their studies and work will be very grateful to you.

Hosted at http://www.allbest.ru/

Introduction

Management of society, ensuring public discipline and law and order is carried out with the help of active methods of purposeful influence on the consciousness and behavior of people, such methods of state and social activity as persuasion and coercion also act as these methods. Persuasion and coercion as methods government controlled, social phenomena, as they find their manifestation in the content of connections between participants in specific social relations. Coercion exists in every human community and is necessary element any social organization. In a pre-class society, it was based on the authority of elders, tribal leaders, etc., in a class society, on the authority of the state. Therefore, coercion is closely related to state power and determines the quality of this power.

It is necessary to distinguish between coercion as a specific activity of government bodies and as one of the management methods. The first of these applies mainly only to those who do not voluntarily comply with the requirements of the law or legitimate government bodies. As for the second, that is, coercion as a method of management, influencing the behavior of people or organizations, its elements are present in all cases where state power is used.

1. Conceptadministrative coercion

The decisive role in the fight against offenses belongs to the state. It has a special apparatus of coercion. Legal norms determine for what state bodies can apply the method of coercion (grounds for coercion), the types and amounts of coercive means (sanctions) and the procedure for their application. State coercion, mediated in law, acts in the form of legal coercion and, as a rule, is expressed in specific coercive measures applied by authorized state bodies (officials) in connection with non-fulfillment legal regulations. In law, there are 4 types of measures of legal (legal) coercion:

· Disciplinary

Material (civil law)

· Criminal

· Administrative

Administrative coercion is a special, independent variety of legal coercion. Administrative coercion plays an important role in law enforcement, includes big number means of restraint (detention of citizens, prohibition of the operation of mechanisms, etc.), the use stops anti-social actions, prevents the onset of socially harmful consequences. The use of administrative coercion is due to:

firstly, by necessity in cases established by law

to punish offenders, secondly, by the need to suppress and, thirdly, to prevent offenses.

An administrative offense (misdemeanor) is a negative social and legal phenomenon, since it harms the protected norms administrative law public and private interests (goods). Because of this, society (the state) is forced to fight against them by establishing appropriate legal prohibitions. Therefore, the purpose of the application of measures of administrative coercion is the protection of public relations protected by law.

Measures of administrative coercion can be applied both in the presence and in the absence of offenses (for example, in emergency circumstances, if necessary, to prevent the commission of an offense). There is also a different opinion in the literature. So, D.N. Bahrakh believes that "administrative coercion is special kind state coercion, consisting in the use by subjects of functional power, established norms administrative law enforcement measures in connection with administrative offenses. D.N. Bahrakh notes that “any coercive measure should be considered as permissible in the form of an exception for violating the inviolability of the person and his rights .... A coercive measure can only be an individual act that has a specific addressee.

Administrative coercion is applied only to offenders in cases and in the manner specified in the law. He points out that, like all means of state coercion in general, administrative measures are applied in connection with offenses. But they are applied in connection with the presence of a special reason - an administrative offense. Since misdemeanors are less harmful than crimes, that measures of administrative coercion are generally less severe than criminal punishment.

As already noted, not everyone enjoys the right to apply administrative-coercive measures, but only special ones. authorized bodies government controlled. This facilitates the control and supervision of the use of coercive measures. Arbitrary appropriation of powers to apply administrative coercion is a gross violation of the law.

Measures of administrative coercion have a preventive focus, they are a means of preventing crime, as they are applied to persons who do not have well-established antisocial attitudes, who commit minor deviations from legal requirements. This is what determines the multiplicity and multiplicity of administrative and legal means of influence used by various subjects of law enforcement.

Administrative coercion is a broad concept, the forms of its concrete expression are very diverse, which is determined by the variety of tasks of public administration bodies and the conditions in which they operate.

Administrative coercion serves the purposes of ensuring state discipline, law and order.

2. Types of administrative coercionniya, their legal characteristics

In the administrative-legal literature, they express various points view on the classification of measures of administrative coercion. So Bahrakh D.N. distinguishes among them: "measures of restraint, administrative and restorative measures and punishments." He notes that “preventive measures are aimed at stopping illegal actions and conditions, they are used in order to prevent new offenses, harmful consequences”*, “restorative measures are used to compensate for the damage caused, to restore the previous state of affairs. Therefore, the type and extent of these measures depends on the nature and extent of the harm caused by the offender.”

I.I. Veremeenko believes that the proposed Bakhrakh D.N. The classification “does not draw a sufficiently clear line between different legal measures. The group of measures of administrative restraint combines both administrative and procedural measures (administrative detention, detention and seizure of property) and administrative and legal sanctions, which the author calls independent measures of administrative restraint (for example, suspension of the operation of an enterprise).

He also argues that the criterion for classifying administrative coercive measures applied in connection with an offense can be “the direct purpose of applying certain measures, according to the specified criterion, they are divided into two subgroups: administrative procedural measures and administrative legal sanctions.” From the above I.I. Veremeenko concludes that the system of measures of administrative coercion consists of three independent units

1. administrative procedural measures;

2. administrative and preventive measures;

3. administrative and legal sanctions”.

At the same time, he notes that “administrative-legal sanctions carry out the protection of law and order and with the help of punishment, restoration and enforcement of a legal obligation that ensures real execution. Accordingly, they can be punitive, restorative and suppressive in nature. proposes to understand "an element of the norm of administrative law, established for the purpose of its protection, containing an indication of those measures of state coercion that are applied to violators of this norm, performing its role of either punishment, or restoration, or real execution and applied, as a rule, in an administrative manner ."

In general, there are two main points of view on the issue of classifying measures of administrative coercion in the science of administrative law (others are a modification of these two points of view).

a) Administrative and preventive measures.

Administrative preventive measures are independent view coercive measures, the purpose of which is to prevent offenses and ensure public safety.

Administrative and preventive measures are of a strictly targeted preventive nature and are aimed at preventing the creation of illegal and other situations that pose a public danger. The basis for the application of administrative preventive measures is not an offense, but the occurrence of special conditions established by law.

Administrative measures include:

Administrative supervision of persons released from places of deprivation of liberty;

Customs inspection;

Special control of passengers and civil aviation vessels;

Drive, registration and official warning about the inadmissibility of antisocial behavior;

Seizure of firearms from persons suffering from mental illness;

Checking documents (when ensuring the passport regime, for car drivers Vehicle, in the border zone, etc.);

Pre-trip examination of motor vehicle drivers;

Closing the border in the area adjacent to the territory affected by the epidemic (epizooty);

Termination of traffic during the repair of roads, electrical cables;

Restriction of traffic in case of accidents, ovals, breaks in power lines;

Slaughter of animals in cases of their infection with contagious diseases;

Destruction of substandard food;

Restriction of the right to use water, etc.”

Administrative and preventive measures act in the form of administrative restrictions (for example, the introduction of quarantine in case of epidemics and epizootics, etc.) or in the form of certain administrative actions in relation to a particular category of organizations and persons (for example, customs inspections).

A special group is made up of the so-called therapeutic and preventive measures of coercion, the purpose of which is not only to ensure public safety, but also to treat the mentally ill, alcoholics, infectious patients, etc. dangerous to society.

So, administrative warning measures are a kind of administrative-coercive means of influence. Them main feature is a clearly defined preventive character, which allows the use of these measures to prevent offenses, ensure public safety in specific conditions, when a known threat is created to the interests of society, at the same time, administrative warning measures are applied in the absence of offenses, in special or emergency circumstances. There are no real offenses, but they may appear if administrative warning measures are not applied, which allows them to be the most important means of preventing administrative and other offenses

b). Measures of administrative restraint

Measures of administrative restraint are used as a means of forcibly stopping offenses and preventing their harmful consequences. These measures are aimed at forcibly stopping illegal behavior, preventing and eliminating its harmful consequences, and at creating conditions for the possible bringing of perpetrators to administrative responsibility. According to their purpose, administrative restraint measures differ from administrative penalties and administrative preventive measures. Their main goal is to stop illegal behavior, eliminate the illegal situation, force the offender to behave lawfully, within, established rules hostels.

Measures of administrative restraint can be applied both independently (closure due to the unsanitary state of the enterprise Catering), and in conjunction with administrative penalties, while they provide the possibility of recovery and, as a rule, precede them (detention of the violator public order followed by the imposition of an administrative fine).

Measures of administrative restraint are diverse. This is due to the fact that in various conditions, in relation to various subjects, various state bodies should apply the most effective means to stop anti-social actions. Big variety preventive measures indicates that the focus in our country is on the prevention of offenses, the timely prevention of further illegal actions. Measures of administrative restraint are used not only to protect the interests of society, but also to protect the interests, health, life of the offender himself (for example, drunk driving, etc.).

Thus, the following can be attributed to administrative and preventive measures:

Detention is used as a means of stopping an offense (for example, behavior that offends public morality) to bring the offender to the police, identify him and draw up a protocol (act) on the offense.

Arrest and seizure of property are applied to items that are in illegal possession (for example, illegal means of hunting, fishing).

Suspension of work can be applied to enterprises that allow such violations of the established procedure of activities that threaten the health and life of people (for example, safety regulations, fire and sanitary regulations.) A special case of such a suspension is the termination of the operation of vehicles, technical condition which poses a threat to traffic safety.

Suspension from work is used as a means of administrative restraint in relation to persons whose state of health threatens others, as well as in relation to drivers of transport vehicles who are in a state of intoxication.

The requirement to stop misbehavior can be applied by authorized authorities in case of detection of such behavior (violations of public order, etc.). This kind of requirement is legally binding, its failure to comply entails appropriate liability.

Elimination of results misconduct is a means of restoring the situation that existed before such actions. An example is the demolition of unauthorized buildings.

Compulsory treatment can be applied to persons with venereal diseases, AIDS, mentally ill people who have committed socially dangerous acts.

The general basis for administrative detention is an administrative offense. In addition to the general prerequisite - the commission of a misdemeanor - one of the following conditions (additional) is necessary for detention: there are serious grounds to assume that active illegal actions will continue, that the offender may cause damage to public interests, other citizens, himself; the inability to draw up a protocol on misconduct and other documents directly on the spot (the identity of the perpetrator has not been established, a medical examination must be carried out, etc.); refusal to pay a fine on the spot or sign the receipt book and indicate your address if there are no witnesses who can provide the necessary information about the offender.

Foreign citizens enjoying diplomatic immunity are not subject to administrative detention. As a rule, administrative detention is not applied to military personnel and employees of internal affairs bodies, as well as to Maslikhat deputies, judges and prosecutors.

Administrative detention should be distinguished from personal detention of persons suspected of committing criminal acts.

The latter is carried out in cases expressly provided for by criminal law:

“The body of inquiry has the right to detain a person suspected of committing a crime for which a sentence of imprisonment may be imposed, only if one of the following grounds exists:

When that person is caught immediately after committing it;

When eyewitnesses, including victims, directly point to this person as having committed a crime;

When obvious traces of a crime are found on the suspect or his clothes, with him or in his home (Article 132 of the Code of Criminal Procedure of the Republic of Kazakhstan).

Detention is carried out if an offense has been committed and there is at least one of the above additional conditions necessary for:

Drafting protocols;

Ensuring timely and correct consideration of the case;

Enforcement of the decision on the case of an administrative offense.

Administrative detention on the grounds, purposes and terms is divided into two groups: detention on general grounds and special types of detention.

Special detention lasts longer than general detention, so it can only be carried out if a person commits a specific offense directly specified in the law (for example, petty hooliganism.

Detention on a general basis usually includes such detention “which is carried out by police officers for a period of not more than three hours, and the detainees are kept in a duty room or other office space.

The legislation establishes five special types of administrative detention:

Detention of persons in a state of intoxication;

Detention of persons who have committed petty hooliganism;

Detention of persons engaged in vagrancy and begging;

Detention of persons evading appearance in court considering the case of misconduct committed by them;

Detention of violators of the border regime.

In general, administrative and preventive measures are aimed at the forced termination of illegal behavior, in the presence of an offense.

c) Sanctions

Measures of administrative penalty are a type of legal (administrative) responsibility, applied for the commission of certain offenses. An administrative penalty is a measure of responsibility and is applied in order to educate a person who has committed administrative offense, in the spirit of the hostel, as well as the prevention of new offenses both by the offender himself and by other persons.

Administrative penalty takes special place in the system of measures of administrative coercion. Their feature is as follows:

They have a pronounced sanction character, which distinguishes them from other types of administrative coercive measures that do not have this quality;

The educational impact of their use is the highest, since it is achieved in a simple, fast and visual way;

Penalties can be applied not only by government bodies, but also by other subjects of law enforcement;

All administrative penalties are imposed on the basis of a special individual act of management - a resolution or decision;

The imposition of administrative penalties is carried out by authorized police bodies in a certain procedural order, which takes into account the nature of the offense committed, the personality of the offender, the degree of his guilt, property status, circumstances mitigating and aggravating liability;

Are effective tool implementation of the institution of responsibility (which is understood as the duty of a citizen or official to give an account of his misconduct in the field of public administration and be punished in the form of an administrative penalty.

The system of administrative penalties is understood as a list of different types of punishment in terms of severity and legal consequences.

Currently, the following administrative and punitive means are used:

1. Measures of moral influence. They are associated with minor misdeeds, usually committed by people accidentally and without any persistent antisocial attitudes. These include warning and public censure.

2. Measures of personal influence. They consist in limiting subjective rights and imposing certain suffering on the violator.

In accordance with Art. 23 of the Code of Administrative Offenses of the Republic of Kazakhstan ( new edition in accordance with the Law of the Republic of Kazakhstan dated July 16, 1999 No. 430-1), the following types of administrative penalties are distinguished:

1) warning;

3) paid seizure of an item that was an instrument for committing or a direct object of an administrative offense;

4) confiscation of an item that was an instrument for committing or a direct object of an administrative offense;

5) deprivation of a special right granted to this citizen (the right to drive vehicles, the right to hunt);

6) administrative arrest;

7) establishment of supervision over entrepreneurial activity;

8) deprivation of a license (patent) for a certain type of activity.

So, an administrative penalty is a measure of punishment applied by those authorized to do so. government bodies(officials), and in cases provided for by law - by people's courts (people's judges), as well as public organizations and their legal representatives to persons guilty of committing an administrative offense.

Conclusion

administrative commissioner offense coercion

So correct use the method of coercion by government bodies, including internal affairs bodies, ensures the effectiveness management activities, the functioning of administrative and legal institutions, the inviolability of the rule of law.

State coercion, which is uniform in its nature, presupposes its differentiation, caused by the heterogeneity of those social relations that are regulated by law and the nature of encroachments on these relations. Administrative coercion is an independent type of state coercion, a method of external state-legal influence on the behavior and consciousness of people, used in the field of public administration in order to punish offenders.

Depending on their intended purpose and the method of ensuring law and order, all measures of administrative coercion can be reduced to three classification groups:

1. Measures of administrative warning.

2. Measures of administrative restraint.

3. Measures of administrative penalty.

In general, measures of administrative coercion have a preventive focus and are a means of preventing crime.

Withlist of used literature

Code of the RSFSR on Administrative Offenses

Dmitry-136

On the road at night with a non-working right headlight, I could not get a warning, because four months ago I did not let a pedestrian pass. But a ten-minute conversation with the head of the traffic police after a petition to replace the fine with a warning ended in the satisfaction of this petition.

Dmitry, thanks for the info!

So the warning can still be obtained in practice.

Good luck on the roads!

Andrey-127

They stopped me at the post for a burned-out dipped-beam lamp, it was proposed to present a sign, a first-aid kit, an extinguisher in exchange for a verbal warning - I didn’t have them.

But you can’t punish the dipped beam bulb the first time.

LIST OF FAULTS AND CONDITIONS UNDER WHICH OPERATION OF VEHICLES IS PROHIBITED

This List establishes malfunctions of cars, buses, road trains, trailers, motorcycles, mopeds, tractors, other self-propelled machines and the conditions under which their operation is prohibited.

3.3. Do not work in the set mode or external lighting devices and retroreflectors are dirty.

The operation of the vehicle is prohibited, but you have the right to drive to a car service or parking lot to fix a malfunction. As an example. On many foreign cars, it is impossible to replace a light bulb without removing the headlight, and the headlight can only be removed after dismantling the bumper.

If you are stopped, say, the next day with the same malfunction, then this is already the operation of the vehicle.

2.3. The driver of the vehicle must:

2.3.1. Before leaving, check and ensure the correct technical condition of the vehicle on the way in accordance with the Basic Regulations for the admission of vehicles to operation and the duties of security officials traffic.

It is forbidden to drive if the working brake system, steering, coupling device (as part of a road train) is malfunctioning, the headlights are not lit (absent) and the rear position lights are in the dark or in conditions of insufficient visibility, the windshield wiper is inactive on the driver’s side during rain or snowfall.

If other malfunctions occur along the way, with which the operation of vehicles is prohibited by the annex to the Basic Provisions, the driver must eliminate them, and if this is not possible, then he can proceed to the place of parking or repair, observing the necessary precautions;

As you can see, only with several malfunctions, the movement of the vehicle is prohibited. In other cases, you can move to the place of parking or repair.

For the headlights. If two headlights do not burn, then movement is prohibited. If one burns, then we move in compliance with the necessary precautions.

Yesterday I received an administrative warning. Making a left turn at the crossroads, I drove with the left side into the dividing intermittent lane of oncoming traffic. Right in front of the inspector.

Nicholas-59

there is a comrade who canceled the decision of the decision in court - he did not refuse the violation, but only did not agree with the size of the fine, or rather he asked for a warning instead of a fine ... he has a copy of the verdict among the photos

Hello everyone. Tell me there is a fine for the lack of a first aid kit and a fire extinguisher in the car, I didn’t find it in the list of fines.

A warning is the same administrative punishment as a punishment with a fine. It is entered into the traffic police database forever!

For two years + 10 days from the date of issue. As well as administrative fines. These criminal cases are remembered forever.

Interesting article! I’ve been driving since 1997 and didn’t know that a warning is issued in writing) Moreover, I don’t have a single acquaintance who would have been given a warning at least once)))

It is possible that a verbal warning is issued. I had a written warning that I stopped to rest outside locality but there were objective reasons. A written warning is issued because in the event of a repeated violation, another inspector can, with a clear conscience, impose a fine.

Vladimir-118

The resolution indicated a warning for violating Art. Who is right....

Vladimir You should have clarified on the basis of which document you are required to pay this amount. In the event of a warning, you do not need to pay anything.

Good luck on the roads!

Just today they stopped at the post and issued such a warning for the dipped beam not turned on (I was driving on dimensions)

Nicholas-82

"The presence of a warning will be an aggravating circumstance for the commission of a homogeneous violation of the rules within 1 year ..."

Please tell me how normative act"homogeneity" of the violation is provided for? ..

Nicholas, I recommend that you study the Resolution of the Plenum of the Supreme Court Russian Federation dated March 24, 2005 N 5 Moscow "On some issues arising from the courts in the application of the Code of Administrative Offenses of the Russian Federation". Paragraph 16 of this document deals with your question.

Good luck on the roads!

Nicholas-82

Thank you very much!!! Helped a lot!!

Good luck on the road too! And Happy New Year to you!!

The day before yesterday they stopped and issued a written warning for a non-burning gauge and the absence of a rear bumper, I screwed the gauge with them, and today a fine came to Yandex, the last violation of the rules was more than a year back, write me a complaint or pay, the discounted amount is 250 r

New edition Art. 3.4 Code of Administrative Offenses of the Russian Federation

1. Warning - a measure of administrative punishment, expressed in the official censure of an individual or legal entity. The warning is issued in writing.

2. A warning is established for administrative offenses committed for the first time in the absence of harm or a threat of harm to life and health of people, objects of an animal and flora, environment, objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation, state security, threats emergencies natural and man-made nature, as well as in the absence of property damage.

3. In cases where the imposition of an administrative penalty in the form of a warning is not provided for by the relevant article of Section II of this Code or the law of a constituent entity of the Russian Federation on administrative offenses, an administrative penalty in the form of an administrative fine may be replaced by a person who is a small and medium-sized business entity carrying out entrepreneurial activity without forming a legal entity, or legal entity, as well as their employees for warning in accordance with Article 4.1.1 of this Code.

Commentary on Article 3.4 of the Code of Administrative Offenses of the Russian Federation

1. A warning as a measure of administrative punishment shall be issued only in writing. It is applied mainly to persons guilty of minor administrative offenses, for example, in the field of traffic (see, for example, the Code of Administrative Offenses, Article 12.1, Part 1, Article 12.2, 12.3, etc.), or to minors under the age of eighteen years.

The only prescribed form of warning is written. No oral remarks to the offender, for example, those provided for in Article 2.9 of the Code of Administrative Offenses with the insignificance of the offense committed, do not apply to administrative penalties.

Issuing a warning in writing is a kind of reminder to the offender that committing a homogeneous administrative offense repeatedly, if the person has already been subjected to an administrative penalty for committing the first one, for which the period of one year provided for by the Code of Administrative Offenses (Article 4.6) has not expired, is a circumstance aggravating administrative responsibility .

The decision to impose an administrative penalty in the form of a warning is executed by a judge, body, official who issued the decision, by handing over or sending a copy of the decision to the person (his legal representative), in respect of whom it was issued.

Another commentary on Art. 3.4 of the Code of the Russian Federation on Administrative Offenses

One of the administrative penalties applied to persons guilty of committing offenses is a warning. A warning as a measure of administrative punishment is characterized by the following features:

it finds its expression in an official censure;

can be applied to both an individual and a legal entity;

is imposed for committing a minor administrative offense even if this sanction is contained in specific norms of the Special Part of the Code of Administrative Offenses of the Russian Federation, or the law of a constituent entity of the Russian Federation on administrative responsibility. Thus, a warning as a measure of administrative punishment is indicated in 20 compositions of the Special Part of the Code of Administrative Offenses of the Russian Federation, which provide for administrative offenses in the field of road traffic;

applied as the main punishment. An additional penalty may be attached to the warning, if such is provided for in the sanction of the relevant norm;

a person who has been sentenced to an administrative penalty in the form of a warning for committing an administrative offense is considered to have been subjected to this penalty within one year;

a warning is always issued in writing, which makes it possible to distinguish it from an oral remark, which is used in cases of release from administrative responsibility of a person who has committed an administrative offense. It should be noted that earlier, in the cases provided for by law, the warning was issued in another established way. The current Code does not provide for other forms of issuing a warning, except for a written one;