Disqualification is one of the types of punishment that is part of the system of measures provided for by administrative law. Under what conditions does this type of punishment apply, to which persons and for how long? We will talk about this later in the article in more detail.
General concept
Disqualification - a type of administrative punishment, which is the deprivation of a person's right to occupy certain positions in the areas of municipal government, executive bodies, as well as joining the main board of directors. In addition, disqualified persons may not carry out activities related to the management of enterprises, organizations or institutions of any form of ownership.
This concept can be applied in the field of health care, in relation to persons who conduct medical activities or are engaged in the production, sale of pharmaceuticals.
Much attention is given to the mentioned administrative punishment in the field of sports. Based on the law, disqualification is a concept that can be applied to actions against a person who trains athletes, as well as those who supply them with medical support.
Such a punishment measure may be imposed for the improper performance by an official of his duties.
Legal Features
Disqualification may be applied exclusively to an individual who is guilty of a certain offense in his field. Moreover, this person, in accordance with the provisions of the law, must be vested with the powers listed in the interpretation of the basic concept of disqualification.
Another feature of it is that it can be applied only as the main form of administrative punishment.
Who installs
Disqualification is a punishment that can only be established in court. In the process of making an appropriate decision, any judge must use the general rules and principles of sentencing. In particular, he must consider the declared case from an objective point of view and make a final decision on the merits of the situation presented.
In addition, the chosen punishment must necessarily be proportionate to the committed act, and also be applied exclusively within the limits established by the articles of legislation. This means that if in article 5.27 of the Code of Administrative Offenses of Russia it is established that the minimum period of ineligibility is 6 months, then the judge does not have the right to establish a shorter period of time - such a decision would be considered unlawful.
Circumstances mitigating the guilt of a person in appointing him disqualification
In making its decision on the disqualification of an official, a judge may pay attention to some circumstances, the presence of which can significantly mitigate a person’s guilt. An example of this can be the fact of repentance of an official that he committed an administrative offense. In addition, the reason for mitigating the punishment or its complete abolition may be the elimination by the perpetrator of all the negative consequences that his conduct entailed.
If the guilty party indemnifies on a voluntary basis all the damage caused to the injured persons or the enterprise, the court may also decide to cancel the disqualification. A warning in this case may become a more loyal replacement for it. In the situation, if the committed act is repeated, the judge has every right to make a decision on the application of the mentioned type of punishment, and in the most severe form.
In the process of conducting a judicial review, the judge has the right to consider other circumstances mitigating, however, the law states that all of them must have a clear justification.
Aggravating Circumstances
As already mentioned, a penalty of disqualification may be imposed on a person who commits an offense repeatedly. In this case, the court has the right to apply the most severe measure to the guilty. It should be noted that the duration of the administrative measure should not exceed that which is indicated as the maximum in the article of the Administrative Code on disqualification.
An aggravating circumstance in court may also be that the convicted person continues to commit unlawful acts, despite a series of warnings and orders to terminate illegal activities. As an aggravating circumstance, the commission of an act during a particularly dangerous situation is also noted. Natural disasters, catastrophes, etc., can serve as examples of this.
The maximum period of disqualification is also assigned in the event that an administrative offense for which this form of punishment is possible was committed by a group of persons, and by prior agreement.
The timing
A punishment such as disqualification may be imposed for a specified period. All possible minimum and maximum periods are specified in the legislation. The longest period of validity of this type of preventive measure is three years, and the shortest - 6 months, exactly such data are presented in the article of the Administrative Code of the Russian Federation.
In the process of choosing a preventive measure, the reason for the disqualification is especially important, which the judge (or panel of judges) must evaluate based on objective considerations and the attitude of the guilty person to the commission of the offense.
What can be assigned disqualification
The described punishment can be assigned only for a separate series of offenses. An exhaustive list of such is provided in the legislation of the Russian Federation. An example of them are the following:
- the use of illegal measures to obtain credit reports;
- sale of goods that do not meet quality standards;
- violation of the procedure established by law for the formation of a pricing policy, etc.
The disqualification of the head, in addition, may be committed if the official carries out deliberate bankruptcy or any unlawful actions in a legal procedure. As practice shows, often the heads of enterprises are punished with disqualification in case of non-compliance with the norms and measures prescribed by the legislation on labor and its protection. Such a preventive measure will be especially severe if the guilty person has already been punished for such an act - the court, as a rule, considers this circumstance aggravating.
An official may also be disqualified if he is engaged in misuse of budget funds or violates the conditions for the provision of subsidies and budget investments.
Legislation pays great attention to the observance of debt repayment terms by officials of enterprises and organizations. In case of violation of such, the responsible person may also be disqualified.
Disqualification
But the preventive measure under discussion can be elected by the court only if, in fact, more than one year has passed from the moment the offense was committed to the trial.And in the event that there is a continuing offense, the decision must be taken within the same period, but only from the moment the discovery of the fact of an offense.
After the decision to disqualify a person comes into force, the punished person is obligatory entered into a special register of such. This list is individual for each city and available for viewing. It is conducted by executive authorities, which are appointed by the Government of the Russian Federation.
The personal data of the disqualified employee, the data of the organization in which he was subjected to this type of punishment, as well as his position, are required to be entered in the register. In addition, this list also contains data on the person who pronounced the verdict (judges). At the moment the preventive measure expires, all data related to the violator is deleted from the registry. The same thing is done when a decision is made to repeal this measure of punishment.
Procedure for applying the measure
Disqualification is a measure of restraint, which provides for depriving an official of the opportunity to occupy certain positions related to the management and conduct of the municipal economy. In accordance with this, the procedure for the execution of a court decision providing for the application of such a measure involves the termination of the employment contract of an enterprise, organization or institution with a person who was found guilty of an offense. During the entire period for which the disqualification is assigned, this person does not have the right to occupy senior positions in other organizations, as well as be a member of the board of directors in companies.
The Code of Administrative Offenses of the Russian Federation provides for the possibility of early reinstatement of a previously provided case disqualified at the workplace only when the higher authority agrees to re-enter into an employment contract with the offending employee. However, as practice shows, this happens very rarely.
Administrative suspension
Suspension is a type of disqualification. This measure is applied exclusively to the persons-entrepreneurs whose functioning is unfair.
In case of revealing the facts of dishonesty, the state represented by a judge has the right to suspend the activities of a legal entity for up to 90 days in order to understand the merits of the situation, as well as provide the guilty person with the opportunity to eliminate its negative consequences. In the event that all conditions are met before the expiration of the established 90 days, the activities of the entrepreneur can be restored ahead of schedule.
Arbitrage practice
It should be noted that in practice the exercise of the right to disqualification is relatively infrequent. In judicial practice, sentences with this type of punishment are very rare. As many practicing judges note, this feature is due to the fact that Russian legislation in this area is not very well developed. In addition, in the scientific literature there is no information regarding the named problem - scientific specialists in the field of jurisprudence, unfortunately, do not seek to study this topic.