If officials of various private or state enterprises violate the requirements of the law, they may be held administratively liable. She is represented not only by various fines, compulsory labor, arrest, forced labor, but also by disqualification. All these types of punishment are assigned only after the trial. Disqualification of an official as a form of administrative punishment consists in the fact that citizens who hold high positions in various organizations lose their right to work in such a specialty.
The concept of this punishment
Article 3.11 of the Code of Administrative Offenses regulates the rules for applying this type of punishment to officials of various institutions. Only one type of punishment is applied to violators, therefore, if an official is disqualified, he does not pay a fine and is not involved in forced labor.
Disqualification of an official for an administrative offense is represented by a process as a result of which a person loses the right to occupy any position or work in a specific field of activity. Such a punishment is the main one, therefore it cannot be a complement to other measures.
To whom does it apply?
The imposition of administrative punishment is considered an effective measure of influence on officials who, during their activities, in any way violate the requirements of the law. This punishment is used for many people filling various positions. These include:
- positions of the federal state civil service;
- positions available in various constituent entities of the Russian Federation;
- positions offered in municipalities;
- other persons who are engaged in organizational, administrative, administrative or business functions in different organizations;
- Board members
- persons specializing in private practice;
- people working in the medical or pharmaceutical field.
The above measures may be subject to disqualification. But this is possible only with the identification of an administrative offense. People holding the positions of the federal state civil service may be completely deprived of the opportunity to work in the former sphere of activity in the future. The exact term of such suspension depends on the decision of the judge.
When is appointed?
There are only a few reasons for the existence of which such a severe punishment can be applied. In what cases is an official disqualified? To do this, the following circumstances should be identified:
- there is evidence that a particular citizen is the culprit of an administrative offense;
- aggravating circumstances are identified;
- certain actions that are a violation of the law were committed intentionally;
- the purpose of their implementation was to obtain any benefit.
All these circumstances are certainly examined by the judge before sentencing.
How long is the punishment applied?
Disqualification is established for a period of 6 months to three years. This is prescribed in Art. 3.11 Administrative Code. The exact duration of this process is determined only by the court. Disqualification is set for a period that is considered optimal for the judge.He must study all the circumstances of the detected offense, as well as take into account mitigating or aggravating factors.
The limitation period for such cases is one year from the date of the commission of the identified offense. If a continuing offense is discovered, then the statute of limitations is the year since it was discovered.
Who is sentenced?
The penalty for administrative offenses is selected by the judge. It is he who has the corresponding functions, therefore, no other state authorities can disqualify any official.
The imposition of an administrative penalty in the form of disqualification is possible only on condition that it is the main one, therefore it is not allowed to additionally apply fines or other measures of influence on the offender.
Fines and warnings can be appointed not only by a judge, but also by officials of certain state bodies with the appropriate powers. They can consider only some cases concerning administrative offenses. For example, such organizations include Rospotrebnadzor.
How is the punishment executed?
Article 32.11 of the Code of Administrative Offenses establishes the procedure on the basis of which the sentence is executed. Disqualification of an official as a form of administrative punishment is often used by judges. To do this, the following actions are performed:
- at the hearing, all circumstances of the offense are assessed;
- an official is recognized as the culprit of this event;
- a decision is drawn up on the basis of which a person is disqualified;
- such a document comes into force from the moment of publication, so the perpetrator must immediately leave his post;
- for this, the employment contract or other contract drawn up between the violator and his employer is terminated.
Additionally, information about the director of the LLC or other official recognized as the culprit is entered in a special register of persons who have been disqualified from their posts.
What mitigating factors are taken into account?
Disqualification of an official as a form of administrative punishment is considered an effective measure of influence on violators. Before using this measure, the judge must evaluate all the circumstances in which a violation was committed. They can be mitigating, which leads to a significant reduction in punishment. These circumstances include:
- the offender repents of his actions, and in such cases the time period for which disqualification is appointed is often reduced;
- the guilty party compensates for the damage caused to the company or individuals, and he can perform this process partially or fully;
- a person has performed certain actions, not knowing that they are a violation of the law;
- the director of the LLC or another official who is the violator is first brought to justice under any article of the Code of Administrative Offenses, since usually the most severe punishment is imposed in case of repeated violations;
- the citizen was under the influence of fraudsters, so he unknowingly carried out actions that led to the receipt of benefits for these people.
Every fact must be proved by official documents or testimonies of witnesses. These factors must be considered by the judge in the sentencing process. Disqualification is established for a period that corresponds to the fault of the official and the consequences of his actions. Often due to the presence of extenuating circumstances, the period for which a person loses the right to hold a certain position is significantly reduced.
What is aggravated?
Disqualification of an official as a form of administrative punishment may be imposed even for a period of three years.Such a duration is chosen by the judge if there are really any aggravating factors. These include:
- the culprit ignored numerous comments or warnings if he previously exceeded his authority or otherwise violated the requirements of the law;
- a citizen is held liable under such an article repeatedly;
- the offense committed occurred at the same time as any disaster that could be global or local.
If the above factors are really revealed, then this often leads to the court imposing the most severe punishment, represented by a disqualification for a period of three years.
How is the process performed?
Under the Code of Administrative Offenses, disqualification of an official applies only to individuals who are employees of various institutions and companies. Therefore, the procedure is that the person terminates the employment contract. The process is divided into stages:
- any serious administrative offense is revealed;
- the company is conducting an investigation, which may be internal or external, and in the second case, law enforcement officers or private detectives are involved in this procedure;
- evidence is gathered that confirms that a particular official is responsible for a specific violation;
- a court session is held to consider extenuating and aggravating circumstances, as well as evidence;
- disqualification is appointed as the main penalty, and its term depends on various factors that are considered by the judge;
- an employment contract is terminated with the violator.
During the term set by the court, a citizen cannot become a member of the board of directors, hold managerial positions in various companies, and also work in local self-government bodies.
If the term of such punishment does not exceed 6 months, then it is allowed to get a job in any position that is not related to past work.
Is this punishment used for legal entities?
In the Code of Administrative Offenses there is no concept related to the disqualification of an official. Therefore, if the owner of the enterprise is the offender, then other penalties should be used against him. Typically, for serious violations, a measure called suspension of activity is applied. It has many common features with disqualification, as the company ceases to operate for a certain period of time.
Such punishment in terms does not exceed 90 days, and during this time the owner of the enterprise is obliged to eliminate all identified problems and violations. If during this time it is impossible to put the business in order, then a second court session is held, by the decision of which the arbitration manager is sent to the company.
Important factors
The main nuances of the appointment of disqualification include:
- usually such a harsh punishment is used if a second violation is detected;
- it is often used if officials abuse their powers, sell goods illegally or forge documents;
- such punishment is used exclusively by the court, therefore, no other state bodies can use it;
- information about the persons to whom the disqualification applies is entered in a special single register, which must be used by company leaders when hiring citizens for managerial positions.
If people for whom this punishment has been applied will still be employed in managerial positions, more severe measures of influence may be applied to them.
Conclusion
Disqualification is considered a significant and serious punishment that may apply to officials of various organizations. It lies in the fact that for a certain period of time the culprit cannot occupy leadership positions.Such punishment is used only for individuals, but for companies suspension of activity is applied.
The period of disqualification depends on the decision of the court, for which mitigating and aggravating circumstances are taken into account. The most severe punishment is selected when a repeated violation is detected.