Actual issues of administrative and legal regulation of administrative coercion measures
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ACTUAL ISSUES OF ADMINISTRATIVE AND LEGAL REGULATION OF ADMINISTRATIVE COERCION MEASURES
The topical issues of administrative and legal regulation of measures of administrative coercion are considered. Measures of administrative coercion can be established only by legal acts.
Keywords: administrative law, administrative process, administrative coercion, norms, administrative restraint, administrative influence.
The basic concept of measures of administrative and legal coercion used by researchers in the field of administrative law implies an established legal norm enshrined in the administrative legislation, which ensures the implementation of the function and tasks assigned to the controlling state body of executive power. In order to ensure public safety and public order state executive authorities have at their disposal various measures of administrative and legal coercion1.
The measure of administrative and legal coercion is defined as a complex of physical or mental impacts, which are carried out by a public official in the person of a body of executive power. Measures of administrative and legal coercion are applied in accordance with the established procedural order. Administrative and legal coercion is widely used by internal affairs bodies for the implementation of their powers.
In order to apply a measure of administrative and legal coercion against an individual or legal entity, legal grounds must be taken into account. The grounds for the application of administrative coercive measures will be:
the commission by a physical or legal person of an administrative offence;
failure to comply with the lawful requirements of a physical or legal person to perform or terminate certain activities.
In the process of researching administrative coercion raises a lot of questions, as scholars in the field of administrative law do not share a common view, when a measure of administrative coercion is applied, and when it is the prevention of offenses.
Administrative coercion is a special type of state coercion, which has as its purpose the protection of social relations that are formed mainly in the field of public administration. Measures of administrative coercion are used in the process of implementation of executive power by relevant bodies and officials, which is the result of demonstration of their authoritative powers. All measures of administrative influence are inherently authoritative and coercive in nature.
At the same time, referring of these measures, we mean not general prohibitions, not dispositions of law norms, but specific measures of state coercion, expressed in direct operational activities of state bodies, officials, in the actual acts of direct impact on the behavior of people, their will, in particular, the personal inspection of passengers, etc. At the same time voluntary compliance with the established rules (e.g., rules of inspection) by those subjects, to whom they are addressed, does not eliminate their objectively coercive content - serious restrictions on their personal freedom, personal and property inviolability.
Administrative coercion in its content is an external state-legal mental and physical impact on the consciousness and behavior of people in the form of restrictions (deprivations) of personal, organizational or property nature, i.e. those or other adverse consequences.
All measures of administrative coercion are used to force the subject to commit certain actions or refrain from them, or to obey the established legal restrictions. Thus, the object of coercive influence in the end is not the person himself, but his behavior.
The measures of administrative coercion can be established only by legal acts. Application of these measures is allowed only on the basis of laws and other normative prescriptions and only within the limits and forms provided by the norms of law. Therefore, administrative coercion is a legal coercion aimed at the implementation of legal acts regulating social relations in the field of public administration.
Administrative coercion is applied only by authorized bodies and officials. Their circle is strictly defined by legal acts. As a rule, they include executive bodies and their officials authorized to perform law enforcement functions in the field of public administration (e.g., bodies of internal affairs, customs authorities). Thus, administrative coercion is characterized by a multiplicity of bodies and officials authorized to apply measures of such coercion.
Administrative coercion is applied not only to individuals (citizens of Uzbekistan, foreign citizens and stateless persons), but also to legal entities2.
One of the most important features of administrative coercion is the specific legal nature of the grounds for its application. The grounds for the application of administrative coercion are:
firstly, the commission of an administrative offence;
secondly, the occurrence of special conditions stipulated by the legal norm, such as natural disasters and other extraordinary circumstances.
It is necessary to emphasize the fundamental difference between the grounds for administrative coercion and the grounds for other types of state coercion, in particular criminal punishment, which can only be the commission of a crime.
Of great theoretical and practical importance is the issue of classifying measures of administrative coercion, which until now has not received a single solution both in theory and in practice. The clear classification of measures of administrative coercion is necessary:
to clarify the essence of a variety of coercive measures applied by the governing bodies;
it is of great importance for the application of coercive measures for ensuring the effectiveness of impact on offenders;
correct classification is a necessary prerequisite for their scientific codification.
The system of measures of administrative coercion consists of three independent subdivisions:
At the same time, it is noted that administrative-legal sanctions protect the rule of law and by means of punishment, restoration and enforcement of a legal obligation, ensuring real enforcement. Accordingly, they can be punitive, restorative and preventive in nature. By administrative-legal sanction it is proposed to understand “an element of the rule of administrative law, established in order to protect it, containing an indication of those measures of state coercion, which are applied to violators of this rule, performing its role of either punishment, or restoration, or real execution and applied, as a regulation, in an administrative order”.
Administrative-preventive measures are an independent type of coercive measures, the purpose of which is prevention of offenses and ensuring public safety. Administrative-preventive measures have a strictly targeted preventive nature and are aimed at preventing the creation of illegal and other situations posing public danger. The basis for the application of administrative-preventive measures is not an offense, but the occurrence of special conditions established
Administrative and preventive measures include:
administrative supervision of persons released from custody;
inspection of hand luggage of persons wishing to attend a public event;
detention of a person who does not have identification documents and who does not or cannot provide personal information about himself/herself;
recording, registering, and an official warning against anti-social behavior;
seizure of firearms from persons suffering from mental illness;
identity check (when a person is suspected of having committed an offence).
Noting the commonality of all administrative-preventive measures, it is impossible not to notice the differences between individual measures in their direct purpose and the nature of the right restrictions.
The main feature is a clearly expressed preventive nature, which allows the use of these measures to prevent offenses, ensure public safety in specific conditions, when a certain threat is created to the interests of society. At the same time, measures of administrative prevention are applied in the absence of offenses, in special or extraordinary circumstances. In this case there are no real offenses, but they can appear, if administrative prevention measures are not applied, which allows them to be the most important means of prevention of administrative and other offenses.
Measures of administrative restraint are used as a means of forcibly stopping offenses and preventing their harmful consequences4. These measures are aimed at forcible termination of unlawful behavior, prevention, elimination of its harmful consequences, to create conditions for possible bringing the perpetrators to administrative responsibility5. By their purpose measures of administrative restraint differ from administrative penalties and administrative-preventive measures. Their main purpose is to stop unlawful behavior, eliminate an unlawful situation, compel offenders to behave lawfully, within the established rules of social life.
In contrast to administrative and preventive measures, measures of restraint are applied in connection with the offenses committed and to the subjects who committed them. Measures of restraint are applied only in the presence of offenses, and like all coercive means is a statutory response to illegal actions.
In general, in the presence of an offense, administrative preventive measures are aimed at forcible termination of unlawful behavior.
Administrative penalties are a type of administrative responsibility, applied for the commission of certain offenses, as well as to prevent new offenses, both by the offender and other persons6.
Administrative penalty occupies a special place in the system of measures of administrative coercion. Their peculiarity is as follows:
they are of a distinctly sanctioning nature;
the educational effect from their application is the highest, as it is achieved in a simple, quick and obvious way;
the penalties can be imposed not only by the public administration, but also by other subjects of the right to apply them;
all administrative penalties are imposed on the basis of a special individual act of administration - a ruling or decision;
the administrative penalties are imposed by authorized police authorities in a certain procedural order that takes into account the nature of the offence, the identity of the offender, and mitigating and aggravating circumstances;
they are an effective means of implementing the institution of responsibility (the obligation of a civilian to give an account of his or her misconduct and to be punished with an administrative penalty).
Code of the Republic of Uzbekistan on Administrative Responsibility provides for a number of restrictions on the application of administrative penalties. For example, administrative arrest cannot be applied to pregnant women, women with children under the age of three, persons raising a child under the age of 14 alone, persons under the age of 18, and persons with disabilities of groups one and two7.
Punishment for an administrative offense is imposed by the authorized body in accordance with the Code of Administrative Responsibility and other relevant legislation when considering a case of an administrative offense. As a rule, a protocol is drawn up on committing an administrative offense. Also, a ruling is issued on the imposition of an administrative penalty. Punishment is imposed within the limits established by the Code or other law providing for administrative responsibility.
Noting the great importance of preventive means, it should be recognized that they are not compulsory. But restorative sanctions are a special type of administrative coercion.
Restorative and preventive means directly restore the legal order, stop the wrongful conduct (e.g., demolition of unauthorized constructions, recovery of deficiency, suspension of work, detention, etc.). These are means of direct coercion to enforce law and order. Penalties, on the other hand, are negative measures of incentives. Punishment induces the offender and other citizens not to violate legal norms, but influences their behavior indirectly.
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