Is a verbal warning an administrative punishment?

Article 3.2. Types of administrative penalties

1. Analysis of the rules of Art. 3.2 allows us to draw a number of important conclusions:

1) they exhaustively establish a list of types of administrative punishment;

2) administrative penalties (specified in Part 1 of Article 3.2) can only be established for administrative offenses. Committing other offenses cannot entail administrative punishment. So, committing:

— disciplinary offenses entail the application of disciplinary measures (i.e. reprimand, reprimand, dismissal, Article 192 of the Labor Code);

- crimes entail the application of certain types of criminal punishment (imprisonment, correctional labor, etc.) specified in Art. 44 CC;

— tax offenses entail the application of tax sanctions (Article 114 of the Tax Code).

Violation of the Civil Code norms entails the application of penalties, penalties, fines, the need for compensation for losses, etc. See more about this in the books: Guev A.N. Article-by-article commentary to part one of the Civil Code of the Russian Federation. Ed. 4th. M.: Publishing house "Examination", 2006; Guev A.N. Commentary on the Criminal Code of the Russian Federation (for entrepreneurs). Ed. 4th. M.: Publishing house "Examination", 2006; Guev A.N. Article-by-article commentary to the Tax Code of the Russian Federation. T. 1. M.: Publishing house "Exam", 2005;

3) administrative penalties are applied only to the extent that the elements of the administrative offense have been established (see commentary to Article 2.1). The absence of at least one of the elements of an administrative offense (i.e. subject or object, subjective or objective side) excludes the possibility of applying administrative punishment;

4) administrative punishment can be imposed on both an individual and a legal entity (see the commentary on this to Article 2.10).

2. Types of administrative punishment are:

1) warning, i.e. official censure of a person, which is issued in writing (see the commentary to Article 3.4 about this);

2) administrative fine, i.e. monetary penalty, which before 07/08/07 was usually expressed in a multiple of several minimum wages, and after 08/08/07 - in a certain amount in rubles (see commentary to Article 3.5);

3) paid seizure of the instrument or subject of an administrative offense, i.e. forced seizure and subsequent sale of the said property with the transfer to the former owner of the proceeds minus the expenses specified in Art. 3.6 (see commentary to it);

4) confiscation of the instrument or subject of the administrative offense, i.e. forced and free transfer into federal ownership of things that have not been withdrawn from circulation (see commentary to Article 3.7);

5) deprivation of a special right and documents certifying this right (for example, a driver’s license, hunting license), i.e. termination of the opportunity to use a previously granted right (see commentary to Article 3.8);

6) administrative arrest, i.e. keeping a person in isolation from society for a certain period of time (see commentary to Article 3.9);

7) administrative expulsion from the Russian Federation. It can only be applied to foreign citizens and stateless persons (see commentary to Article 3.10);

8) disqualification, i.e. deprivation of the rights of an individual to occupy leadership positions in the executive body of a legal entity, to join its other governing bodies, etc. (see commentary to Article 3.11);

9) administrative suspension of activities. This type of punishment was introduced by Law No. 45 and applies only to legal entities and individual entrepreneurs (see commentary to Article 3.12)

3. Norms part 2 art. 3.2 provide that only the following types of administrative punishment can be applied to a legal entity:

— warning (in writing);

- administrative fine (in higher amounts than in relation to an individual, see Art. 3.5);

— paid seizure of the instrument or subject of an administrative offense;

— confiscation of the instrument or subject of an administrative offense;

— administrative suspension of activities.

The administrative penalties mentioned above are applied only taking into account the rules of Part 2 of Art. 2.1, Art. 2.10 (see comments to them).

4. Describing the rules of Part 3 of Art. 3.2, you need to take into account that they:

1) make it possible to delimit the powers of the Russian Federation and its constituent entities on the issue of establishing administrative punishment;

2) imperatively provide that only the Russian Federation establishes the following types of administrative penalties:

— paid seizure of the instrument or subject of committing an administrative offense;

— confiscation of the instrument or subject of committing an administrative offense;

- deprivation of special rights;

— administrative expulsion from the Russian Federation;

— administrative suspension of activities;

3) proceed from the fact that other types of administrative punishment (namely a warning and an administrative fine) can also be established by the laws of the constituent entities of the Russian Federation;

4) proceed from the fact that the Russian Federation exercises its powers in establishing types of administrative punishment only by introducing relevant norms in the Code of Administrative Offences.

At the same time, if, in accordance with the norms of an international treaty or international law (in force for the Russian Federation), other types of administrative punishment are provided, then they are subject to application (see commentary to Article 1.1).

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.

Dear visitor!

If you have any questions, you can ask a lawyer for free by phone.

Our lawyer will advise you FREE OF CHARGE.

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.

Is a verbal warning an administrative punishment?

Home » Violation of the law » Warning as an administrative penalty

Warning as an administrative penalty

Administrative punishment is focused mainly on preventing the implementation of unlawful acts.

Therefore, a warning as an administrative penalty in 2019 is the lightest type of liability. It represents a documented censure of an individual or legal entity and is documented in writing.

Content

In what cases is punishment established?
Examples
Types of punishments
Important
additional characteristics
Results

The exact answer to the question “is a warning an administrative offense?” reflected in Article 3.4 of the Code of Administrative Offences .
It states that this type of liability is practiced if administrative crimes are committed once, as well as in the absence of damage to the health or life of people and other circumstances. A warning is classified as a basic administrative method of punishment and is not used as an additional type of liability. In what cases is punishment established?
With the combination of three mandatory conditions, it is possible to determine this type of punishment:

1. The offense was committed for the first time;
2. No property damage was caused;
3. No damage has been caused or there is no threat of it being caused to objects of society, the environment, animal or plant environment.

In some situations, according to Article 4.1.1 of the Code of Administrative Offences, for certain categories of offenders it is likely that the fine will be replaced with a warning. To do this, you must meet both the above conditions and the ones below:

the violation must be detected during inspection activities by government agencies;

the punished legal entity must be a representative of a small or medium-sized business.

These conditions are also relevant for individuals - employees of small or medium-sized businesses who have committed a minor offense.

A warning can be assigned to legal entities, officials, individuals, as well as foreign nationals.
An example with the inclusion of a legal entity is the failure to transfer to government agencies the data necessary for conducting an audit, or the provision of incomplete information.
Example of issuing a warning to a civilian: failure to comply with pedestrian duties.

For example, when moving along the side of the road, he must go in the opposite direction in relation to the movement of cars.

Types of punishment

Prevention of new offenses is the goal of administrative punishment; it is aimed not so much at the offender, but at other people. The types of warnings for administrative punishment are conditionally divided.

1. General warning, consisting of public rejection of illegal actions. In this case, the intention is to instill respect for legislative documents and the state. Such a warning helps to create order in society.

2. Special warning reflected in legislative measures.

So, the concept of “warning” as an administrative punishment means a method of punishment reflected in the formal condemnation of a person.
A warning is issued only in the form of a written decision, but not verbally. This type of liability is practiced if the degree of misconduct is very small and does not cause damage to public peace. Important
A warning as an administrative punishment should not be confused with a warning as a type of suppression. Verbal warnings issued by authorized persons to individuals and companies do not constitute administrative punishment. In the same way, written notices that are sent to individuals and legal entities are not such, because then a document on the award of punishment is not generated.

A warning as an administrative penalty is necessarily regulated by the method of signing a written resolution and handing over the original or copy of the document to the person held accountable.

Also, the document can be transferred to the legal representative if there is a notarized power of attorney.
A warning is the mildest means of administrative punishment. That is why many people regard a warning as a measure of a moral rather than a legal nature. This judgment is misleading because:

the use of this type of liability, like other administrative penalties, carries with it negative legal consequences for the offender.

A person who has received a warning will be subject to administrative punishment for the next 12 months. This clause will certainly have an impact on the type and degree of punishment imposed for repeated commission of an administrative offense, plus it will become a circumstance that aggravates responsibility.

additional characteristics

Based on the content of the first part of Article 4.1 of the code in question, a warning is issued by a judge, or a structure, or a special accredited person.
Punishment is determined by the framework provided by the Code of Administrative Offenses or the administrative legislation of each individual Russian region. All provisions of this article on the offense have unconditional status. A person or structure considering a case of committing an offense must take into account the following points: the identity of the person who committed the offense; financial capabilities of the offender, mitigating or aggravating consequences.

Before making a decision on the need to impose an administrative penalty, the person sent by the state is obliged to analyze from all sides the offense committed for its significance, as well as for the damage caused.

It is considered necessary to assess the personality of the offender in terms of predisposition to commit various administrative crimes. That is, before making a final decision, you need to find out whether such actions are normal for a person or whether this is a one-time incident. A person’s lifestyle is also subject to assessment.

A warning must be issued in writing; this helps to distinguish it from an oral reprimand, which is issued in situations where a person who has committed an administrative offense is released from administrative penalties.
It should be noted that previously, in situations established by law, a warning was registered using another prescribed method. The current Code of Administrative Offenses does not stipulate other methods of issuing a warning, except in writing. According to the terms of Article 28.6 of the code under consideration, the establishment of such an administrative type of liability as a warning is carried out in a simplified procedure - without maintaining and drawing up a protocol.

Warning as a type of administrative punishment - prevention of committing illegal acts

An administrative warning is considered as the mildest punishment according to the norms of the Code of Administrative Offenses of the Russian Federation. This type of sanctions can be imposed immediately during the consideration of the case, and for certain sections of the Code of Administrative Offenses of the Russian Federation - by sending a petition to replace another type of punishment. In this material we will examine the legal grounds for issuing warnings, as well as the procedure for applying this sanction.

What it is

The purpose of any type of administrative sanctions is not only to punish the actual offense committed, but also to suppress subsequent illegal behavior. If the offense was committed by a citizen for the first time and did not entail negative consequences, the law allows one to limit oneself to a special measure of influence - a warning.

A warning is considered the main and only punishment for committing an offense. Its essence lies in the official censure of the offender on behalf of the state. Let us highlight the key features that characterize this type of sanctions:

a warning is issued in the form of a written document - a judicial act, a resolution of officials and authorized departments;
this type of punishment is applied to offenders who have committed an offense for the first time;
a warning can be used only in the absence of harm to public and private interests, as well as the threat of such harm;
a type of punishment in the form of a warning is included in the content of articles of the Special Part of the Code of Administrative Offenses of the Russian Federation, or is applied by replacing a fine on the basis of a petition from the offender.

Who can receive a warning?

Sanction in the form of a warning applies to all categories of offenders - individuals and legal entities. The application of such punishment is within the competence of judicial authorities and other persons considering an administrative case. If the text of an article of the Special Part of the Code of Administrative Offenses of the Russian Federation contains several sanctions, issuing warnings is a right, not an obligation.

The law allows for filing a petition to replace an administrative fine with a warning. This rule applies only under the following conditions:

Small and medium-sized businesses (individual entrepreneurs and organizations) or their full-time employees can submit an application;
the fine should be imposed based on the results of inspections by control and supervisory authorities (Ministry of Emergency Situations, Rostechnadzor, prosecutor's office, labor inspectorate, etc.);
The petition may be satisfied if the actions or inaction of the offender did not cause harm, or there is no threat of causing harm.

For certain provisions of the Code of Administrative Offenses of the Russian Federation, even compliance with the listed conditions does not provide grounds to replace the fine with a warning. These compounds are listed in Art. 4.1.1 Code of Administrative Offenses of the Russian Federation. For example, replacement will not be possible for disobedience to a lawful order of an employee of the Ministry of Internal Affairs (Article 19.3 of the Code of Administrative Offenses of the Russian Federation). If there are no grounds for replacing the fine with a warning, the petition is left unsatisfied and a written act is issued.

Let's consider in what cases this type of sanctions is established, and what consequences the warning entails.

How a warning is assigned

The key condition for issuing a warning, Article 3.4 of the Code of Administrative Offenses of the Russian Federation specifies the absence of any harm or threat of causing it, including:

life and health of citizens;
the environment, objects of the natural and plant world;
cultural heritage sites;
the country's security interests;
threats of emergency situations (natural, man-made and other situations);
any form of property damage.

Verification of these circumstances is carried out when drawing up a procedural protocol and during the consideration of the case. If any type of harm is detected, the offender will not be able to count on such a lenient measure of influence.

The procedure for bringing to justice with the possible issuance of a warning is as follows:

upon the discovery of a violation, a procedural protocol is drawn up - it records all the circumstances of the offense, including the negative consequences that have occurred and the threat of harm;
if the official who discovered the violation has the authority to consider the case, a warning can be issued without transferring the materials to the court - in this case, the sanction is recorded in the text of the resolution, which is handed to the offender;
if the court has the authority to consider the case, the proceedings will be conducted on the basis of procedural material - the offender is notified in writing of the place and time of the meeting;
the trial may be conducted without the participation of the offender if he is notified of the place and time of the hearing;
if the circumstances of the case allow the possibility of limiting oneself to a warning, the sanction is recorded in the form of a court order - a copy of this document is sent to the address of the offender or handed over to him.

If, as a result of a supervisory or control inspection, a fine is imposed on an individual entrepreneur, an enterprise, or their employees, the offender may apply to change the sanction to a warning. To do this, you need to consider the following nuances:

Individual entrepreneurs or organizations classified as small and medium-sized businesses can submit an application - with a maximum number of up to 100 people (small enterprises) or 250 employees (medium-sized enterprises, as well as with a maximum revenue of up to 800 million rubles (MP) or 2 billion RUB (SP);
replacement of the fine is allowed only if the warning was initially absent in the form of sanctions under the article of the Special Part of the Code of Administrative Offenses of the Russian Federation - otherwise the decision on choosing the type of punishment is made directly during the consideration of the case;
when replacing a fine with a warning, the court or other authorized person must check that there is no harm or threat of causing harm from the identified violation.

To confirm the status of a small and medium-sized business, an individual entrepreneur or enterprise must submit reports on the average number of staff, as well as revenue for the previous calendar year. Only official documents submitted to the Federal Tax Service and other control authorities will be considered.

Replacing a fine with a warning occurs by issuing an official act of the court or other body, which is handed to the offender . If, at the time of replacement, enforcement proceedings were initiated to forcibly withhold the fine, they are subject to termination. Also, when replaced, other types of additional punishments previously imposed for committing an offense are canceled.

Consequences of issuing a warning

According to the rules of Article 32.1 of the Code of Administrative Offenses of the Russian Federation, sanctions in the form of a warning are executed by delivering or sending a copy of the resolution to the violator. This must be done by the court or other authorized body that considered the case. From the moment the act is delivered or sent, the punishment is considered fulfilled.

Comments to ST 2.9 Code of Administrative Offenses of the Russian Federation

Article 2.9 of the Code of Administrative Offenses of the Russian Federation. Possibility of exemption from administrative liability if the administrative offense is insignificant

Commentary on Article 2.9 of the Code of Administrative Offenses of the Russian Federation:

1. The legislator has provided the opportunity for the judge, body, or official considering the case, under certain conditions, to apply an oral reprimand against the offender - a method of educational influence that is not associated with either administrative punishment or a measure of social influence. An example of exemption from administrative liability would be an official explanation to a citizen trying to cross the roadway outside a pedestrian crossing of the illegal nature of his behavior and the possible harmful consequences for him and society.

An oral remark does not entail legal consequences for the violator. However, he must recognize the wrongfulness of his behavior in order to prevent similar behavior in the future. It is clear that an oral reprimand can only be made for a minor offense. The legislation does not contain a list of them or indications of signs that make it possible to judge the insignificance of administrative offenses. Obviously, these are administrative offenses that do not pose great public harm and do not cause any significant damage to state or public interests or directly to citizens. On this issue, see paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5 “On some issues that arise for courts when applying the Code of the Russian Federation on Administrative Offenses” (as amended by the Resolutions of the Plenum of the Supreme Court of the Russian Federation dated May 25 2006 No. 12 and dated June 10, 2010 No. 13).

2. The establishment in law of such a measure of influence as an oral reprimand makes it possible to talk about the inevitability of a response to every offense, including minor ones.

The Code clearly distinguishes between an oral reprimand and a warning: an oral reprimand is not specified as a type of punishment in Art. 3.2; warning is listed as a type of punishment in clause 1, part 1 of this article and in art. Art. 3.3, 3.4, as well as in the sanctions of articles of the Special Part of the Code. A warning, being the main administrative penalty, is issued in writing.

The norm of this article applies directly; to apply an oral reprimand and exemption from liability, no special mention of such a possibility is required in the rule on liability for a specific offense. The purpose of an oral reprimand is largely dependent on the discretion of the official deciding the case, his assessment of all the circumstances of the act and the identity of the offender.

The commented article does not prescribe mandatory exemption from administrative liability for all minor offenses, but only provides the right to make such a decision. In this regard, the subject of administrative jurisdiction is obliged, during the proceedings, to consider all the circumstances of the violation, assess its consequences, make sure that a specific action does not cause any significant harm to individual citizens or society, examine the situation in which the offense was committed, the identity of the offender, the circumstances , mitigating and aggravating liability, etc. Only in the aggregate, all the established data will help answer the question of whether it is possible to exempt the offender from administrative liability and limit himself to an oral remark.

If a decision is made to issue an oral reprimand to the person, a decision is made to terminate the proceedings in this case (Part 1 of Article 29.9, Clause 3 of Part 1 of Article 30.7 of the Code).