Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 18, 2018 N 43

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To prevent administrative offenses, a provision was introduced into the Code of Administrative Offenses (CAO RF) to replace a fine with a warning. The norm should reduce the financial burden on small and medium-sized businesses and shift the focus to preventive measures.

Our expert explains how it works.

For whom is it possible to replace a fine with a warning?

Clause 1 Art. 4.1.1 of the Code of Administrative Offenses of the Russian Federation provides for the replacement of a fine with a warning for non-profit organizations and small and medium-sized businesses.

The criteria by which you can determine which category a business entity belongs to can be found in the Typical situation: Who belongs to small and medium-sized businesses (Glavnaya Kniga Publishing House, 2021) {ConsultantPlus}.

This rule can be applied if the violation was committed for the first time and did not cause harm to human life or health, animals, plants, cultural heritage sites, etc. Based on this, paragraph 1 of Art. 4.1.1. The Code of Administrative Offenses of the Russian Federation is applied in the following cases:

• there is evidence in the case that the person brought to justice is a small and medium-sized business;
• the offense was committed for the first time;
• the offense did not cause damage to property and/or harm to the life and health of people, animals, plants, cultural heritage sites, etc.;
• the offense was detected during state or municipal supervisory activities.

Clause 2 Art. 4.1.1 The Code of Administrative Offenses of the Russian Federation talks about when it is impossible to replace a fine for committing an administrative offense. For example, this rule cannot be applied in the following cases:

• unfair competition;
• failure to provide information by foreign agents;
• forgery of documents;
• illegal remuneration;
• illegal recruitment to work.

Mandatory work

Compulsory labor is a punishment provided for by criminal and administrative legislation. It is appointed by the court and consists of performing free socially useful work during free time from main work or study (Article 49 of the Criminal Code of the Russian Federation, Article 3.13 of the Code of Administrative Offenses of the Russian Federation). Compulsory labor as administrative and criminal penalties differ in terms of terms, methods of execution, categories of citizens who cannot be assigned such punishment, and some other criteria.

Citizens are involved in administrative compulsory work in accordance with Art. 32.13 of the Code of Administrative Offenses of the Russian Federation and Article 109.2 of the Federal Law “On Enforcement Proceedings”. Work is served on the basis of a writ of execution issued by the court. The bailiff directs the debtor to an organization from the approved list at his place of residence and monitors the completion of work by visiting it and familiarizing himself with the documents. In the decision to initiate enforcement proceedings, the bailiff indicates:

• disabled people of the first group;
• pregnant women and women with children under three years of age;
• military personnel undergoing military service by conscription and under contract (Articles 49, 50 of the Criminal Code of the Russian Federation);
• In addition to these persons, administrative punishment does not apply to citizens called up for military training and persons holding special ranks of the RF IC, internal affairs bodies, the National Guard, bodies and institutions of the penal system, fire service and customs authorities (Article 3.13 of the Code of Administrative Offenses of the Russian Federation).

• type of work and organization in which they are served;
• procedure and conditions for serving work (with explanations);
• a warning that work must begin within 10 days;
• clarification of the right to apply for a change in the type of work and a reduction in the number of hours;
• warning about liability for evasion.

Legal instructions urist-onlain.ru will tell you about the procedure and conditions for serving criminal and administrative punishment in the form of compulsory labor, deadlines for execution and responsibility for evasion.

As in the case when compulsory work is a criminal punishment, it is performed free of charge, and leave from the main place of work is not taken into account.

When a fine cannot be replaced with a warning

In general, a warning is the lightest and most insignificant punishment, which is enshrined in Art. 3.4 Code of Administrative Offenses of the Russian Federation. And this punishment is expressed in official censure and issued in writing.

It should be noted that not all articles of the Code of Administrative Offenses of the Russian Federation contain a warning as a sanction.

As follows from the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 4, approved by the Presidium of the Supreme Court of the Russian Federation on December 26, 2018, in addition to the grounds established by Art. 4.1.1 of the Code of Administrative Offenses of the Russian Federation, the fundamental condition for the possibility of replacing an administrative fine with a warning is the fact that the offense was committed for the first time.

The courts when deciding the issue of qualification under Art. 4.1.1 of the Code of Administrative Offenses of the Russian Federation were guided by the concept of repetition, which is given in paragraph 2 of part 1 of Art. 4.3 Code of Administrative Offenses of the Russian Federation. In accordance with this article, an offense is repeated if it is homogeneous and committed within a year from the date of expiration of the decision on the imposition of an administrative penalty.

Homogeneous offenses are understood as such offenses, liability for the commission of which is provided for in one article of the Special Part of the Code of Administrative Offenses of the Russian Federation (clause 19.1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 06/02/2004 No. 10 (as amended on 12/21/2017) “On some issues that arose in judicial practice when considering cases of administrative offenses" {ConsultantPlus}).

In turn, the Supreme Court did not support this position. The Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated 09/05/2018 No. 302-AD18-6072 in case No. A33-3714/2017B states that when considering the possibility of replacing an administrative fine with a warning, other administrative offenses committed previously should be taken into account, including including those that are not homogeneous in relation to the offense in question. This position is reflected in the Resolution of the Arbitration Court of the Far Eastern District dated 07/06/2021 No. F03-2173/2021 in case No. A73-18401/2020.

In order for the court to replace the fine with a warning, it is not necessary to file a petition. This is evidenced by judicial practice. According to the Resolution of the Fourth Court of Cassation of General Jurisdiction dated April 23, 2021 No. 16-823/2020, 16-15/2021, taking into account the wording of Part 1 of Art. 4.1.1 of the Code of Administrative Offenses of the Russian Federation, the question of the grounds for replacing an administrative fine with a warning must be considered in court, regardless of whether the corresponding petition was filed by the person held accountable.

The Resolution of the Arbitration Court of the North Caucasus District dated July 28, 2020 No. F08-5018/2020 in case No. A53-38398/2019 reflects a similar position and notes that the court must take an active position in deciding whether a given person has the status of a small or medium-sized businesses, invite participants in the process to provide evidence confirming this circumstance.

On the peculiarities of replacing punishment with a judicial fine

In Part 1 of Art. 46 of the Criminal Code of the Russian Federation defines a fine. According to it, a fine is a monetary penalty that can be imposed within the limits provided for by the Criminal Code of the Russian Federation. In Art. 44 of the Criminal Code of the Russian Federation presents a hierarchy of all types of punishments. A fine, according to this hierarchy, comes first, which means it is the mildest type of punishment.

In order to impose a fine, the court must take into account circumstances such as the degree of public danger of the act, the identity of the perpetrator, and must also take into account mitigating and aggravating circumstances. Most often, a fine as the main punishment is imposed for crimes of minor or medium gravity, for example, for crimes such as theft, petty theft committed by a person subjected to administrative punishment, battery by a person subjected to administrative punishment, etc. However, in some cases, it can also be assigned for serious crimes, for example, for fraud on an especially large scale, receipt by an official, a foreign official or an official of a public international organization of a bribe for illegal actions (inaction).

In Russian criminal law, punishments are divided into basic and additional. There are also punishments that can act as both primary and additional punishment. A fine is a similar type of punishment. As the main punishment, a fine may be imposed in the following cases, which are presented in Table No. 1.

Is it possible to replace other types of punishment with a fine?

If we turn to Art. 397 of the Code of Criminal Procedure of the Russian Federation, we will see that the unserved part of the punishment can be replaced by the court with a more lenient type of punishment in accordance with Art. 80 of the Criminal Code of the Russian Federation. Based on the provisions of the criminal law, we can conclude that theoretically a fine can replace other types of punishment, but only if the court decides to mitigate it.

However, this raises a natural and logical question about law enforcement practice regarding this issue. Do courts make decisions to replace a more severe type of punishment with a fine?

If we turn to judicial practice, to cases of reviewing the punishment imposed by the court, we will notice that the courts quite often refuse to satisfy such complaints, although it is worth noting that this does not happen in all cases. Sometimes courts satisfy such complaints and commute punishments, but in the vast majority of cases, courts decide to replace the punishment with compulsory or forced labor, or restriction of freedom. Decisions to replace punishment with a fine are not made. This can be explained by the fact that most often such petitions are filed by persons sentenced to serve a sentence of imprisonment, and the courts most likely consider it inappropriate to replace this type of punishment with the mildest of all possible ones.

the punishment will replace the previous ones, will depend on what types of punishment are included in the sanction by the new article of the Criminal Code of the Russian Federation. If the sanction includes a fine, then perhaps the convicted person will be sentenced to a fine. However, if the sanction provides for alternative types of punishment, the court may decide to impose any of the alternative types of punishment. When making a decision, the court must take into account the specifics of the case, the identity of the convicted person and other circumstances that are important for the criminal case, so that the court decision complies with the three most important principles: legality, validity and fairness.

Replacing a criminal fine with another type of punishment

If a convicted person applies for participation in the consideration of a criminal case by an appellate court, this is indicated in his appeal or in objections to complaints and submissions brought by other participants in the criminal process.

File an appeal in accordance with Article 389.6 of the Code of Criminal Procedure of the Russian Federation. There can be no other advice here, since the court has already decided to commute the sentence. Please refer to medical contraindications for the type of punishment assigned to you; only you will be required to provide medical documents confirming the presence of the disease.

Hello, we need to look at your court decision to indicate everything accurately. Refer to mitigating circumstances, for example.

▪ an indication of the verdict or other court decision and the name of the court that decided or issued it;

“Criminal Procedure Code of the Russian Federation” dated December 18, 2001 N 174-FZ (as amended on April 17, 2017)

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Dear colleagues, I wish each of us to hold high the title of lawyer, unswervingly adhering to the principles of impartiality and objectivity!

I was sentenced to 50 hours of compulsory work.

A convicted person is considered to have maliciously evaded serving compulsory labor:

▪ In relation to convicts who maliciously evade serving compulsory labor, the penal inspection sends to the court a proposal to replace compulsory labor with another type of punishment in accordance with part three of Article 49 of the Criminal Code of the Russian Federation.

These rules apply to cases of malicious evasion of a person from serving compulsory labor or correctional labor or restriction of freedom assigned in accordance with Part 5 of Article 46 of the Criminal Code of the Russian Federation. The use of imprisonment in such cases is permitted, even when the fine imposed by the court was not a multiple of the amount. The term of punishment is calculated based on the unserved part of the sentence with which the fine was replaced, and not on the amount of the fine.

Andrey, you need to think carefully before avoiding this type of punishment.

▪ For violation of the order and conditions of serving a sentence by a person sentenced to compulsory labor, the penal inspection warns him of responsibility in accordance with the legislation of the Russian Federation.

Replacing a fine in a criminal case with compulsory work

Yes, under Article 264.1 of the Criminal Code of the Russian Federation there is a whole range of punishments not related to actual imprisonment. Therefore, if a fine is not paid, it can be replaced with compulsory work at the request of the bailiff. There will be no imprisonment.

In this case, the court will proceed from the circumstances of the case, the family and financial status of the spouse when passing a sentence. In this case, if you have income, you will most likely be fined

If, as you say, and you are convinced that a fine will be imposed, then the development of events in case of non-payment of the fine will be as follows___

Based on Article 32 of the Penal Code, the bailiff, if the deadline for paying the fine has expired, must send to the court a proposal to replace the fine with another type of punishment in this criminal case. He must do this no earlier than 10 days after the deadline for paying fines, and no later than 30 days.

The sanction of Article 264.1 of the Criminal Code of the Russian Federation provides not only a fine, but also compulsory and forced labor. If none of the measures can be prescribed, then arguments can be made in favor of this, as well as in favor of installment payment of the fine for 5 years in accordance with Article 31 of the Penal Code of the Russian Federation.

Penalty for SZV-M: reduce or cancel

Marina Balandina, professional accountant

SZV-M is a simple report. Even too much. This is probably why they pay the least attention to it, miss mistakes or even forget to submit it. The result is fines, and the larger the state, the more impressive the amounts of these fines. If you don’t want to pay offensive fines for SZV-M, read the article.

You will learn

• Amount of fines for SZV-M
• Deadlines for reducing or canceling a fine
• Grounds for reducing the fine
• Grounds for canceling a fine
• How to pass SZV-M without errors

Amount of fines for SZV-M

• For failure to submit, delays or errors in SZV-M the following will be punished: Organization (IP) - 500 rubles. for each insured person in the report. This fine is imposed by the Pension Fund itself.
• Directors - 300-500 rubles. This fine is imposed by the court on the basis of the Pension Fund of Russia protocol on an administrative offense. The administrative fine does not apply to individual entrepreneurs.