Warning instead of a fine by the Code of Administrative Offenses

Article 4.1.1. Replacement of administrative punishment in the form of an administrative fine with a warning

Information about changes:

Federal Law No. 316-FZ of July 3, 2016 supplemented this Code with Article 4.1.1

Article 4.1.1. Replacement of administrative punishment in the form of an administrative fine with a warning

1. Those who are small and medium-sized businesses, persons engaged in business activities without forming a legal entity, and legal entities, as well as their employees, for the first time committed an administrative offense identified during the implementation of state control (supervision), municipal control, in cases where the appointment administrative punishment in the form of a warning is not provided for by the corresponding article of Section II of this Code or the law of a constituent entity of the Russian Federation on administrative offenses, administrative punishment in the form of an administrative fine is subject to replacement with a warning in the presence of circumstances provided for in Part 2 of Article 3.4 of this Code, with the exception of cases provided for in Part 2 of this article.

Information about changes:

Part 2 amended from March 18, 2019 - Federal Law of March 18, 2019 N 27-FZ

2. Administrative punishment in the form of an administrative fine cannot be replaced by a warning in the event of an administrative offense provided for in Articles 13.15, 14.31 - 14.33, 19.3, 19.5, 19.5.1, 19.6, 19.8 - 19.8.2, 19.23, parts 2 and 3 of the article 19.27, articles 19.28, 19.29, 19.30, 19.33 of this Code.

3. If an administrative penalty in the form of an administrative fine is replaced by a warning, the additional administrative penalty 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 is not applied.

Article 4.1.1 of the Code of Administrative Offenses of the Russian Federation. Replacing an administrative penalty in the form of an administrative fine with a warning (current version)

Administrative warning

One of the possible sanctions for an administrative violation is a warning. Usually it is assigned for minor violations of the law, when there is no harm or threat of causing harm or other negative consequences from the actions of the guilty person. An official, an authorized body or a court has the right to issue a warning.

What is a warning under the Code of Administrative Offenses of the Russian Federation

A sanction such as a warning is an official censure of a citizen or organization. The censure is issued on behalf of the state and must be in writing.

The general conditions for the application of such a measure of influence are provided for in Article 3.4 of the Code of Administrative Offenses of the Russian Federation:

a warning can be issued only for the first time an act has been committed (in case of repeated violations of the law, a court or other body will apply other sanctions);
the actions of the guilty person should not result in negative consequences in the form of harm to health, the environment, state and public interests, or property damage;
This form of censure can be used if this sanction is directly indicated in the article of the Code of Administrative Offenses of the Russian Federation (except in the case of replacing a monetary fine with a written censure).

Article 4.1.1 of the Code of Administrative Offenses of the Russian Federation contains a rule on replacing a fine with a warning. This is allowed only in relation to small and medium-sized businesses (individual entrepreneurs or organizations), as well as their employees. A fine imposed based on the results of control and supervisory inspections can be replaced by a warning. It is impossible to replace fines imposed for the offenses listed in Part 2 of Art. 4.1.1. Code of Administrative Offenses of the Russian Federation.

A warning is the mildest sanction under the Code of Administrative Offenses of the Russian Federation. However, it may be the basis for toughening punishment for a repeated offense under the same composition of the Administrative Code of the Russian Federation. This rule is valid during the period of bringing to administrative responsibility - 1 year from the date of the decision (Article 4.6 of the Code of Administrative Offenses of the Russian Federation). If this period has expired and the citizen or organization has not committed repeated violations of the law, the punishment is canceled.

An oral reprimand, which is announced upon termination of an administrative case, should not be confused with a warning. A reprimand is not a punitive measure and does not entail any additional consequences. In fact, a remark has educational and preventive functions, as it indicates the inevitability of punishment for misconduct. A separate protocol is not drawn up for announcing a remark, whereas a warning is recorded in exactly this form.

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What can they be assigned for?

To count on a written reprimand instead of a fine or other sanction, you need to look at the list of punishments under specific articles of the Code of Administrative Offenses of the Russian Federation. Here are a number of administrative offenses for which the culprit may receive a censure without additional measures:

under Part 1 of Article 12.2 of the Code of Administrative Offenses of the Russian Federation for driving a car with unreadable or non-standard license plates;
according to Art. 12.3 of the Code of Administrative Offenses of the Russian Federation, if the driver does not have the required documents with him (vehicle registration certificate, MTPL insurance policy);
according to Art. 12.22 of the Code of Administrative Offenses of the Russian Federation, if traffic rules were violated in terms of training driving.

This is just a small list of offenses for which you can count on the minimum possible punishment in the form of a warning. However, all of the listed articles also have an alternative sanction in the form of a fine. Therefore, the final decision will be made by a court, official or authorized body.

As can be seen from the considered compositions, censure is applied for minor offenses when the imposition of severe sanctions would be disproportionate to the violation of the law. It is possible to determine that the offender’s guilty actions did not result in negative consequences using the materials of the administrative case. First of all, the fact of violation is recorded in the protocol. At the same time, all the circumstances of the offense, the nature of the harm and damage (if any) will be indicated.

Is it possible to challenge

Since a warning is an administrative sanction, it can be appealed according to standard rules. From the moment of receiving a copy of the decision, the subject has 10 days to appeal the decision. A complaint must be submitted to a higher court, official or authorized body.

If the appeal is successful, the sanction will be canceled and will not be taken into account if the offense is repeated. Also, when challenging, it is not allowed to tighten the imposed punishment, i.e. A higher court or other body has no right to apply other measures of influence.

Additional nuances of sentencing

Written censure is issued in the form of a resolution. This is allowed directly at the scene of detection of the offense (for example, for individual traffic violations), or during the main proceedings of the case. If a procedural protocol is drawn up for two or more violations of the law, falling under different offenses, the norm of Article 4.4 of the Code of Administrative Offenses of the Russian Federation is applied. The punishment will be chosen under a more severe article, which does not provide for the issuance of a warning.

The procedure for replacing a fine in accordance with Art. 4.1.1 Code of Administrative Offenses of the Russian Federation:

the basis for replacing a fine with a more lenient sanction may be an act based on the results of an inspection by control and supervisory authorities;
if, according to the composition in question, the use of warnings was initially allowed, but the court or other body chose a fine, replacement is not allowed;
Small and medium-sized enterprises are determined by the average number of employees and business turnover.

To exercise the right of substitution, the penalty in the form of a fine must be reflected in the resolution. The fact of conducting a control or supervisory inspection will be confirmed by materials from a state or municipal body.

Also, when replacing a fine with a written reprimand, additional sanctions provided for by the Code of Administrative Offenses of the Russian Federation or regional legislation will not be applied.

The Supreme Court clarified when a fine cannot be replaced with a warning

A small enterprise challenged the administrative liability for failure to timely submit a declaration on the turnover of alcoholic beverages. The courts found the company guilty, but replaced the fine imposed on it with a warning. The Ministry of Industry, Energy and Trade of the Krasnoyarsk Territory appealed the judicial acts to the Supreme Court, which canceled the replacement of punishment .

Ruzi LLC delayed submitting a declaration on the volume of retail sales of alcoholic beverages for the 3rd quarter of 2016 by a month. The Ministry of Industry, Energy and Trade of the region brought the company to administrative responsibility under Art. 15.13. Code of Administrative Offenses, assigning her 55,000 rubles. fine The company appealed the decision administratively, and then appealed to the Arbitration Court of the Krasnoyarsk Territory with a demand to declare it illegal and cancel the decision on administrative liability.

During the consideration of case A33-3714/2017, the Regional Court found that the declaration was submitted on November 24, 2016, while the established deadline for its filing expired on October 20, 2106. No evidence was provided that the applicant took comprehensive measures to prevent the identified violation. The court found the company guilty of committing the violation charged to it.

As an aggravating circumstance, the ministry pointed to the repetition of the same violation by Ruzi LLC: the declaration for the second quarter of 2016 was submitted in violation of the deadline.

But the arbitration did not accept this argument. The court explained that in order to recognize a homogeneous violation as repeated, it must be committed during the period when the person is considered subject to administrative punishment (Article 4.3 of the Administrative Code). The offender is considered subject to administrative punishment from the date the decision on his appointment enters into legal force until the expiration of one year from the date of completion of the execution of such a decision (Article 4.6 of the Code of Administrative Offenses). The decision to prosecute for violating the deadline for submitting a declaration for the second quarter of 2016 was issued on December 2, 2016, and the offense considered by the court was committed on October 21, 2016. Thus, at the time of the commission of the administrative offense in question, which was expressed in the untimely submission of a declaration for the 3rd quarter of 2016, the company was not subject to administrative punishment under Article 15.13 of the Code of Administrative Offenses of the Russian Federation. This means that this violation is not repeated.

Then the court replaced the administrative fine with a warning, guided by Art. 4.1.1. Code of Administrative Offences, according to which for the first time an administrative offense is committed by small and medium-sized businesses, the punishment in the form of a fine must be replaced with a warning.

The ministry did not agree with the court's decision and filed an appeal with the Third Arbitration Court of Appeal . According to the government agency, “the court of first instance incorrectly interprets the norm of Article 4.1.1 of the Code of Administrative Offenses of the Russian Federation and makes an unlawful conclusion that the legal entity has not previously been brought to administrative liability under Article 15.13 of the Code of Administrative Offenses of the Russian Federation, and the offense was committed for the first time.”

3 AAS rejected the appellant's arguments and supported the court of first instance. According to the panel of judges 3 of the AAC, when deciding whether an offense was committed for the first time or not, one should be guided by the definition of repetition, which is enshrined in Article 4.3 of the Code of Administrative Offenses. This is what the AS of the Krasnoyarsk Territory did.

3 AAS explained that “to bring to justice for a newly committed homogeneous offense, only the fact that the offender’s earlier actions have already received a legal assessment by the state matters.” That is, in order to recognize a violation as repeated, by the time it was committed, the first violation must already have been recorded by a resolution on an administrative offense. In the case of Ruzi LLC, on the date of the second violation (10/21/2016), which was expressed in violation of the deadlines for filing a declaration for the 3rd quarter of 2016, a violation of the filing deadlines for the 2nd quarter of 2016 had not yet been recorded; The decision to bring to administrative responsibility for this earlier violation was issued only on December 2, 2016. In fact, the first violation became known only when the company tried to challenge the decision to prosecute the second violation administratively.

Moreover, 3 AAS considered that “the mere fact of committing an administrative offense before the decision to bring administrative liability into force does not have any legal significance, since the decision to bring to administrative liability can be canceled and the person will not be considered to have been brought to administrative responsibility, and, therefore, to have committed any offense.”

On September 5, the Supreme Court considered the complaint of the Ministry of Industry, Energy and Trade of the region, and criticized the arbitration courts.

According to the Supreme Court, the fundamental condition for the application of Art. 4.1.1. The Code of Administrative Offenses of the Russian Federation is the fact that “an administrative offense was committed for the first time, that is, the preference provided for in Article 4.1.1 of the Code of Administrative Offenses of the Russian Federation is exclusive.” When considering the possibility of replacing an administrative fine with a warning, other administrative offenses committed previously, including those that are not homogeneous in relation to the offense in question, must be taken into account. The presence of a resolution on bringing to administrative liability and its entry into force have no legal significance, since the norms of the Code of Administrative Offenses on warning and replacement of a fine with this type of punishment (Articles 3.4 and 4.1.1 of the Code of Administrative Offenses) do not provide for such conditions.

The Supreme Court indicated that the presence of a previous offense in the present case is proven by a resolution dated December 2, 2016, by which Ruzi LLC was already brought to administrative liability under Article 15.13 of the Code of Administrative Offenses of the Russian Federation for untimely submission of a declaration on the volume of retail sales of alcoholic products for the 2nd quarter of 2016. Consequently, the company’s failure to timely submit a declaration for the 3rd quarter of 2016 is not the first time an administrative offense has been committed.

For these reasons, the Supreme Court overturned the decision of the Administrative Court of the Krasnoyarsk Territory, the decision of the Third Arbitration Court of Appeal, and adopted a new decision, which refused to declare Ruzi LLC illegal and cancel the decision to bring to administrative liability under Article 15.13 of the Code of Administrative Offenses in the form of a fine in the amount of 55,000 rubles .

Let us recall that earlier the Supreme Court explained to Krasnoyarsk officials how to choose the right management company for new buildings.

How the new rule on replacing a fine with a warning is applied

Since July 2016, specifically for small and medium-sized businesses, the Code of Administrative Offenses has included a rule on replacing a fine with a warning. It is valid if the violation is committed for the first time, there is no property damage and there is no threat of harm to the life and health of people and the security of the state. Six months have passed since the introduction of this norm and now we can understand how it is applied in practice. As often happens, the first practice discovered “pitfalls”, now knowing about which, it will be easier for the rest of the company to achieve only a warning instead of paying a fine. Details are in the Current Topic.

What is the rule about replacing a fine with a warning?

It states that a fine must be replaced with a warning if:

the violation was committed for the first time;
committed by a small or medium-sized business (organization or individual entrepreneur) or its employee;
there is no harm or threat of harm to human life and health, flora and fauna, the environment, cultural heritage sites, state security, there is no threat of natural or man-made emergencies and property damage (Part 2 of Article 3.4);
the violation was discovered during an inspection by a state or municipal control body;
punishment in the form of a warning is not provided for by the relevant article of the code;
The fine for violation is not provided for in Art. 14.31–14.33, 19.3, 19.5, 19.5.1, 19.6, 19.8 - 19.8.2, 19.23, parts 2 and 3 art. 19.27, Art. 19.28, 19.29, 19.30, 19.33 Code of Administrative Offenses of the Russian Federation.

“CODE of the Russian Federation on administrative offenses” dated December 30, 2001 No. 195-FZ (as amended, valid from July 4, 2016)

Editor's note:

This rule was introduced into the Code of Administrative Offenses on behalf of the President of the Russian Federation in order to prevent the application of excessive fines to small and medium-sized businesses and to focus on the prevention of administrative offenses.

How to determine if a violation has been committed for the first time

One of them is committing an offense for the first time.

To understand whether a violation has been committed for the first time, you need to:

1) find out which violation is repeated. It is mentioned in paragraph 2 of part 1 of Art. 4.3 of the Code of Administrative Offenses of the Russian Federation: the commission of a homogeneous administrative offense during the period when the person is considered subject to administrative punishment in accordance with Article 4.6 of the Code of Administrative Offenses of the Russian Federation is recognized as repeated;

2) now you need to find out:

What is a homogeneous violation? It is stated in clause 19.1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 06/02/2004 No. 10: offenses for which liability is provided for by one article of the Code of Administrative Offenses of the Russian Federation are considered homogeneous;
what is the period when a person is considered subject to administrative punishment. It is mentioned in Art. 4.6 of the Code of Administrative Offenses of the Russian Federation: a person is considered subject to administrative punishment from the day the resolution imposing an administrative penalty enters into legal force until the expiration of one year from the date of execution of this resolution.

Thus, when deciding on the application of Art. 4.1.1 of the Code of Administrative Offenses of the Russian Federation, it is necessary to find out whether the person has previously been held accountable for a similar offense.

If so, has a year elapsed since the execution of the decree?

It should be taken into account that if, as a result of the audit, several homogeneous offenses are identified, but the criteria specified in Art. 4.1.1 of the Code of Administrative Offenses of the Russian Federation, the person is held accountable in the form of a warning for each of these offenses.

There is no need to apply for a warning

At the same time, the company (IP) can undertake documentary evidence that the offense was committed for the first time. After all, according to Part 1 of Art. 25.1 of the Code of Administrative Offenses of the Russian Federation, a person against whom an administrative case is being conducted has the right, in particular, to get acquainted with all its materials, give explanations, and present evidence.

When determining the primacy of an administrative offense, the courts indicate that one of the grounds for replacing a fine with a warning is the failure to previously bring a small or medium-sized business entity to administrative responsibility for committing a similar offense.

LETTER of the Federal Tax Service of the Russian Federation dated December 22, 2016 No. SA-4-7/24729

Replacing a fine with a warning does not apply to violations during state registration

The service explains it as follows.

Part 1 art. 4.1.1 states that if a company or individual entrepreneur belonging to the category of small or medium-sized business commits for the first time an offense identified during the implementation of state control (supervision), responsibility for which is provided for by the Code of Administrative Offenses of the Russian Federation, then instead of a fine they should only be given a warning.

In parts of 3-5 tbsp. 14.25 provides for liability for late submission of information about a company or individual entrepreneur and submission of false information during state registration.

At the same time, relations in connection with the state registration of legal entities during their creation, reorganization, liquidation and when amending the charter, as well as in connection with the maintenance of the Unified State Register of Legal Entities and the Unified State Register of Individual Entrepreneurs, are regulated by Law No. 129-FZ dated 08.08.2001.

This law, like any other regulatory legal acts, does not provide for the exercise by the Federal Tax Service of state control (supervision) in the field of state registration of legal entities and individual entrepreneurs.

Editor's note:

This original interpretation of the law, unfortunately, does not stand up to criticism.

Offenses to which Part 1 of Art. 4.1.1 Code of Administrative Offenses of the Russian Federation, are listed in Part 2 of the same article. Parts 3-5 tbsp. 14.25 of the code is not among them. Therefore, the rule on replacing a fine with a warning applies to these parts.

As for the lack of control powers of the Federal Tax Service in the field of state registration, then:

firstly, it does not matter which government agency (Federal Tax Service or another) has such powers, since if Art. 14.25 of the Code of Administrative Offenses of the Russian Federation, which means that some government agency is authorized to monitor compliance with those legal requirements for violation of which this article provides for punishment;
secondly, the Federal Tax Service still has such powers, since, for example, in Part 1 of Art. 23.6 of the Code of Administrative Offenses is written in black and white: “The federal executive body that carries out state registration of legal entities and individual entrepreneurs considers cases of administrative offenses provided for in parts 3 and 4 of Article 14.25 of this Code.”

Moreover, the Federal Tax Service itself, in its letter dated June 25, 2014 No. SA-4-14/12088, provided detailed instructions for initiating cases under this article.

If the tax authority at the place of registration of the legal entity identifies sufficient data indicating the presence of an administrative offense event in the form of submission of documents containing deliberately false information about the address (location) of the legal entity, the documents are sent to the registering authority within 5 working days to draw up a protocol under Part. 4 tbsp. 14.25 of the Code of Administrative Offenses of the Russian Federation, and in the absence of evidence of deliberate falsity of the information provided - under Part 3 of Art. 14.25 Code of Administrative Offenses of the Russian Federation.

In the event that the functions of the registering authority and the tax authority are carried out by one tax authority, the activities specified in this letter are carried out by this tax authority.

The question arises: on what basis of legislation was this letter written, if, as the Federal Tax Service claims, neither Law 129-FZ nor other regulatory legal acts provide for the Federal Tax Service to exercise state control (supervision) in the field of state registration of legal entities and individual entrepreneurs?

Only courts of first and appellate instances can replace a fine with a warning.

The company, believing that the fine was imposed without taking into account the actual circumstances, went to court.

She asked to reduce the fine to 10,000, taking into account the following:

after registering the customs declaration, she herself discovered that there was a typo in the declaration in the article number of the goods and a declaration with the correct article was submitted to the customs authority, and the decision to refuse to release the goods was made by the customs authority after the submission of the declaration of conformity with the correct article;
the imported products meet the necessary technical requirements, that is, the products are safe for the end consumer, and therefore there is no significant threat to protected public relations;
the company had no intention of declaring false information when declaring, since the necessary permitting document was submitted to the customs authority before the refusal to release the goods and before drawing up a protocol on the administrative offense.

However, all these arguments were rejected and in the cassation appeal the company pointed to Art. 4.1.1 of the Code of Administrative Offenses of the Russian Federation and asked to replace the fine with a warning. citing the fact that the cassation court has limited competence, which does not include establishing the circumstances of the case and assessing the evidence in the case.

DECISION of the Arbitration Court of the Moscow District dated January 11, 2017 No. F05-19676/2016

Editor's note:

the stated position was confirmed by the Supreme Court of the Russian Federation: “in general, the issue of reducing sanctions is related to the assessment of evidence in the case, which is within the competence of the courts of first and appellate instances” (Resolution No. 302-AD16-14642 dated November 10, 2016).

In what cases does a fine not change to a warning?

Needless to say, the statistics are depressing.

The table shows all these cases, indicating the essence of the violations, articles of the Code of Administrative Offences, amounts of fines and, most importantly, the reasoning of the courts why they refused to replace the fine with a warning. After the table - conclusions.

TABLE: “A devil’s dozen cases of the RF Armed Forces on replacing a fine with a warning”