Disqualification of an official as a type of administrative punishment

General concept

Disqualification is 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 to join the main board of directors. In addition, disqualified persons cannot carry out activities related to the management of enterprises, organizations or institutions of any form of ownership.

This concept can be applied in the healthcare sector, in relation to persons who conduct medical activities or are engaged in the production and sale of pharmaceuticals.

Much attention is paid 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 provide medical care for them.

Such a penalty may be imposed for improper performance by an official of his duties.

Deprivation of the right to hold positions in the executive body of a legal entity

In relation to the situation under consideration, of particular interest is the deprivation of an individual of the right to hold positions in the executive body of a legal entity. The Code of the Russian Federation on Administrative Offenses does not disclose the concept of “ executive management body of a legal entity”

“, however, at the same time, it indicates the officials of the legal entity in respect of whom disqualification may be applied. Such persons include:

• officials performing organizational, administrative or administrative functions in a body of a legal entity;
• members of the board of directors (supervisory board).

When referring to persons holding positions in the executive management body of a legal entity, it should be taken into account that organizational and administrative functions are understood as powers that are associated with the management of the labor collective of a legal entity, with the formation of personnel and the determination of the labor functions of employees, with the organization of work procedures, applying incentives or rewards, imposing disciplinary sanctions, etc.

Administrative and economic functions include the authority of a person to manage and dispose of property and (or) funds on the balance sheet and (or) bank accounts of a legal entity, as well as to perform other actions (for example, making decisions on payroll, bonuses, monitoring the movement of material assets, determining the order of their storage, accounting and control over their expenditure).

The status of the bodies of a legal entity is determined in accordance with the provisions of the Civil Code of the Russian Federation (Article 53), federal laws, decrees of the Government of the Russian Federation, and the constituent documents of such a legal entity. Non-profit organizations can act on the basis of the general regulations on organizations of this type.

You may be interested in bankruptcy services for legal entities.

For example, the powers of members of the board of directors and the content of the status of the sole executive body are determined in accordance with the provisions of Federal Law No. 14-FZ dated 02/08/1998 “On Limited Liability Companies”. In particular, in accordance with Article 40 of this law, the sole executive body of the company (general director, president and others) is elected by the general meeting of the company’s participants for a period determined by the company’s charter, if the company’s charter does not include the resolution of these issues within the competence of the board of directors (supervisory board) society. The sole executive body of the company may also be elected not from among its participants.

By virtue of clause 3 of Art. 55 of the Civil Code of the Russian Federation, the bodies of a legal entity do not include its separate divisions - representative offices and branches; they cannot be vested with the powers of a legal entity.

Thus, disqualification can be applied to a fairly wide range of persons holding positions in the management bodies of a legal entity.

Legal features

Disqualification can only be applied to an individual who is guilty of committing a specific offense in his or her field. Moreover, this person, in accordance with 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 only be applied as the main type of administrative punishment.

Installed by

Disqualification is a penalty that can only be established in court. In the process of making an appropriate decision, any judge is obliged to use the general rules and principles of sentencing. In particular, he must consider the stated 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 be proportionate to the act committed, and also be applied exclusively within the limits established by the articles of legislation. This means that if Article 5.27 of the Code of Administrative Offenses of Russia establishes that the minimum period of disqualification is 6 months, then the judge does not have the right to set it for a shorter period - such a decision will be considered illegal.

Grounds for disqualification

The list of violations for which you can be disqualified is given in the table on p. 133.

Table

Let us consider in detail Art.

5.27 of the Code of Administrative Offenses of the Russian Federation, which establishes liability for violations of labor and labor protection legislation.

What is considered a similar violation for which one can be disqualified? The Code of Administrative Offenses of the Russian Federation does not disclose this concept. For example , representatives of the labor inspectorate may consider similar violations such as non-payment of sick leave and lack of an employment contract with a part-time worker.

However, judges do not support controllers. This is evidenced by the Resolution of the Supreme Court of the Russian Federation dated February 28, 2006 N 59-ad06-1. The judges referred to paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 N 5. It states that a similar offense (in Part 2 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation) should be understood as the commission by an official of the same, and not any violation of the law about labor and labor protection. For example , the first time an official did not make a payment when dismissing one employee, and later - when dismissing another employee.

Circumstances mitigating the guilt of a person when disqualifying him

When making a decision to disqualify an official, a judge may pay attention to certain circumstances, the presence of which can significantly mitigate a person’s guilt. An example of this could be the fact that an official repents of having committed an administrative offense. In addition, the reason for mitigating the punishment or its complete cancellation may be the elimination by the guilty person of all the negative consequences that his act entailed.

If the perpetrator voluntarily compensates for all damage caused to the injured persons or enterprise, the court may also decide to cancel the disqualification. In this case, a warning can become a more loyal replacement. In a situation where 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.

During the judicial review process, the judge has the right to consider other circumstances as mitigating, but the law states that all of them must have a clear justification.

Extenuating circumstances

When considering a case in court, various mitigating circumstances may be taken into account.

The following things can be considered as such:

1. If the offender is genuinely remorseful for what he did, the judge may consider this a reason to impose a minimum sentence. It should be noted that the judge does not have the right to completely cancel the punishment in question. He can only choose a term that, in his opinion, will be the most fair and will be within the limits permitted by law.
2. If the person who committed the violation and caused the damage compensated the affected people and organizations for the damage caused, having done so in full or at least in part. In the first case, the court has the right to consider the possible complete lifting of the disqualification.

Aggravating circumstances

As already mentioned, a punishment in the form of disqualification can 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 perpetrator. It should be noted that the duration of the administrative measure should not exceed that indicated as the maximum in the article of the Code of Administrative Offenses on disqualification.

An aggravating circumstance in court may be that the convicted person continues to commit illegal actions, despite a number of warnings and orders to stop illegal activities. The commission of an act during a particularly dangerous situation is also noted as an aggravating circumstance. Examples of this include natural disasters, catastrophes, etc.

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 conspiracy.

How often is manager disqualification used?

An analysis of judicial practice shows that most often disqualification is applied under Art. 5.27 and art. 14.25 of the Code of the Russian Federation on Administrative Offences. Recently, the will of the legislator has been observed, aimed at expanding the range of offenses for which disqualification is applied.

A systematic analysis of the provisions of the Code of the Russian Federation on Administrative Offenses allows us to conclude that in most cases, liability in the form of disqualification is applied in case of repeated offenses for the same offense. The use of this approach corresponds to the principle of reasonableness and humanity in relation to the offender.

The provisions of the Code of the Russian Federation on Administrative Offenses establish the procedure for disqualification. In particular, an administrative penalty in the form of disqualification is imposed by a judge. Disqualification is one of the lasting administrative penalties and is established for a period of six months to three years (Part 2 of Article 3.11 of the Code of the Russian Federation on Administrative Offences).

In accordance with Part 2 of Art. 31.2 of the Code of the Russian Federation on Administrative Offenses and Part 1 of Art. 318 of the Administrative Procedural Code of the Russian Federation, the decree (decision) on disqualification is subject to execution from the moment it enters into legal force.

By virtue of Art. 32.11 of the Code of the Russian Federation on Administrative Offenses, a disqualification resolution must be executed immediately after the resolution enters into legal force by the person held administratively liable. The disqualification order is executed by terminating the agreement (contract) with the disqualified person.

An analysis of the provisions of the Labor Code of the Russian Federation shows that an employee (including a manager) who has been disqualified must be dismissed. As established by Art. 83 of the Labor Code of the Russian Federation, termination of an employment contract is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer, which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements.

Information about disqualified persons is included in the register of disqualified persons. The person responsible for the formation and maintenance of the register is the Federal Tax Service of the Russian Federation (clause 1.2 of the Regulations of the Federal Tax Service of the Russian Federation, approved by Order of the Federal Tax Service of Russia dated February 17, 2014 N ММВ-7-7/ [email protected] ). Therefore, when hiring, it will always be possible to identify a person who is disqualified.

Of significant interest is the analysis of the practice of using disqualification as a penalty under Part 8 of Art. 14.13 of the Code of the Russian Federation on Administrative Offenses, put into effect on December 29, 2015 by Federal Law of December 29, 2015 N 391-FZ “On Amendments to Certain Legislative Acts of the Russian Federation.”

In accordance with paragraph 4 of Art. 10 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)”, if the debtor is declared insolvent (bankrupt) due to the actions and (or) inaction of persons controlling the debtor, such persons, in the event of insufficiency of the debtor’s property, bear subsidiary liability for its obligations .

Until proven otherwise, it is assumed that the debtor is declared insolvent (bankrupt) due to the actions and (or) inaction of persons controlling the debtor in the presence of one of the following circumstances:

According to paragraph 7 of Art. 10 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)”

Part 8 of Article 14.13 of the Code of the Russian Federation on Administrative Offenses provides for the liability of service officials for failure to comply with the rulings of the arbitration court on bringing to subsidiary liability the persons controlling the debtor. Tax authorities have the right to draw up protocols on administrative offenses for this offense. Based on the results of an audit conducted by the tax authority, the arbitration court will be able to disqualify the persons responsible for the execution of the court decision.

Deadlines

Punishment such as disqualification may be set for a certain 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 is 6 months, this is the data presented in the article of the Code of Administrative Offenses of the Russian Federation.

In the process of choosing a preventive measure, the reason for 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 offense he committed.

How is a sanction assigned?

The basis for introducing a disqualification regime is a decision in an administrative case. The appointment of this sanction is within the exclusive competence of the court - other departments do not have the power to disqualify . The procedure for bringing to justice is as follows:

• upon the discovery of a violation, a procedural protocol is drawn up - various departments can handle the paperwork, depending on the powers granted;
• During the consideration of the case, the potential offender is not deprived of the right to hold a position or carry out certain activities, since disqualification comes into force only by a judicial act;
• administrative material is sent for consideration to the courts;
• consideration of the case can take place without the participation of a citizen if the materials contain evidence of proper notification of the place and time of the court hearing;
• the court may, but is not obligated to, apply a sanction in the form of disqualification - this measure of influence refers to additional types of punishment, so the court may limit itself to a fine, arrest or compulsory labor (depending on the article in question of the Code of Administrative Offenses of the Russian Federation).

Download a sample protocol on an administrative offense

The court decision can be appealed by the offender within seven days from the receipt of a copy of the document. Until the specified period for appeal has expired, or until the complaint has been considered on its merits by a higher authority, the punishment does not come into force.

A typical example of disqualification is associated with improper performance of organizational, administrative or economic functions in a government agency. If an official whose powers included ensuring labor safety rules committed an administrative offense, an additional sanction may be disqualification - a ban on holding the specified position.

Duration of the sanction

Article 3.11 of the Code of Administrative Offenses of the Russian Federation regulates the minimum and maximum period of disqualification that an offender may face - the sanction is set for a period from 6 months to 3 years. The specific amount of the sanction will be determined by the court, but it is impossible to go beyond the article of the Code of Administrative Offenses of the Russian Federation under which the offense is considered. For example, if a misdemeanor is punishable by no more than one and a half years of disqualification, the court cannot arbitrarily increase this period to three years.

What can lead to disqualification?

The described penalty can only be imposed for a separate series of offenses. An exhaustive list of these is given in the legislation of the Russian Federation. An example of them are the following:

• using illegal measures to obtain credit reports;
• sale of goods that do not meet quality standards;
• violation of the procedure for establishing a pricing policy established by law, etc.

Disqualification of a manager, in addition, can be carried out if the official commits deliberate bankruptcy or any unlawful actions in a legal procedure. As practice shows, enterprise managers are often 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 previously been punished for such an act - the court, as a rule, considers such a circumstance to be aggravating.

An official may also be disqualified if he or she engages in misuse of budget funds or violates the conditions for the provision of subsidies and budget investments.

The legislation pays great attention to the observance by officials of enterprises and organizations of debt repayment deadlines. If these are violated, the person responsible may also be disqualified.

What it is

The Administrative Code provides for several types of penalties, disqualification is one of them. The main issues related to it are regulated by Article 3.11 of the Code of Administrative Offenses of the Russian Federation.

This punishment consists in the fact that the offender is prohibited from holding certain positions for a period appointed by the court. This does not apply to all types of work activity, but only to the following:

• public service in the Russian Federation (at the federal, regional or municipal level);
• positions in the governing executive bodies of legal entities;
• provision of state or municipal services;
• work related to the training of athletes;
• activities related to examination of industrial safety issues;
• conducting risk assessments related to fire safety issues;
• carrying out examinations related to the field of public procurement;
• when working in the pharmaceutical or medical field;
• work in the management of apartment buildings.

Disqualification should not be confused with other situations where legislation prohibits individuals from engaging in a particular activity. There is an administrative deprivation of a person’s special right to work in certain positions, as well as a similar kind of criminal punishment (Article 47 of the Criminal Code of the Russian Federation), but these measures are not considered administrative disqualification.

According to the second part of Article 3.11, the duration of this punishment can range from 6 months to three years.

It is important to note that such a measure is not provided for those who are the founder of a legal entity or those who own any property.

Disqualification is the main punishment for certain offenses. There are several dozen of them. For example, the following can be mentioned:

1. Bankruptcy that is fictitious or deliberate.
2. Illegally providing or obtaining a credit report.
3. Price manipulation that took place in the wholesale electricity market.
4. Breaking the rules. Which regulate work in the field of certification.
5. Serious violation related to the fulfillment of obligations provided for when signing a defense contract.
6. An offense related to the misuse of budget funds.
7. Violation of labor legislation by a person who was previously subjected to an administrative penalty for a similar reason.

There are also other types of offenses for which disqualification is imposed.

Making decisions on the application of disqualification

But the preventive measure under discussion can be chosen by the court only if more than one year has not passed from the moment the offense was committed to the trial of the case on the merits. And in the event that there is a continuing offense, then the decision must be made within the same period, but only from the moment the fact of committing the offense is discovered.

After the decision to disqualify a person comes into force, the punished person must be included in a special register of such persons. This list is individual for each city and available for review. It is conducted by executive authorities, which are appointed by the Government of the Russian Federation.

The register must include 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. In addition, this list also contains data regarding the person who passed the sentence (the judge). At the moment when the preventive measure expires, all data associated with the violator is deleted from the registry. The same is done in the case when a decision is made to abolish this penalty.

Court decision on disqualification

If there is a violation that is subject to disqualification, registration occurs in several stages.

The following steps are taken:

1. As soon as a violation is discovered, a protocol is drawn up. This is done by regulatory services that have the appropriate powers.
2. While a case or complaint against a court decision is being considered, the accused has the opportunity to continue to work in his place.
3. The material about the offense committed is sent to the district court.
4. The trial must take place in the presence of the perpetrator. However, if he was notified of the time and place of the hearing, but did not appear, then the court may work in his absence.
5. If the accused deems it necessary, he can file a complaint.
6. After the decision has been made and entered into legal force, the employment contract of the perpetrator must be terminated.
7. Information about the perpetrator is placed in the Register of Disqualified Persons.
8. If the person who has been punished hides this fact at his place of work, the court transfers the data to the bailiff service, which will ensure the execution of the sentence. In addition, the culprit in this case faces a fine of 5,000 rubles.

Procedure for applying the measure

Disqualification is a preventive measure that provides for the deprivation of an official of the opportunity to occupy certain positions related to the management and maintenance of municipal economy. In accordance with this, the procedure for executing 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 committing an offense. During the entire period for which the disqualification is imposed, this person has no right to occupy leadership positions in other organizations, as well as to 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 disqualified person in the workplace only when a higher authority agrees to re-enter into an employment contract with the offending employee. However, as practice shows, this happens very rarely.

Disqualification

Disqualification is a type of administrative punishment that has been applied since July 1, 2002 (i.e., since the entry into force of the new Code of Administrative Offenses of the Russian Federation) and in accordance with Art. 3.11 of the Code of Administrative Offenses of the Russian Federation is to deprive an individual of the right to occupy leadership positions in the executive body of a legal entity, to join the board of directors (supervisory board), to carry out entrepreneurial activities to manage a legal entity, as well as to manage a legal entity in other cases provided for by the legislation of the Russian Federation.

In addition to individuals, disqualification applies to officials of bodies of a legal entity, members of the Board of Directors of a legal entity, as well as to persons engaged in business activities without forming a legal entity, including arbitration managers. The period of disqualification is from six months to three years.

In accordance with paragraph 3 of Article 4.5 of the Code of Administrative Offenses of the Russian Federation, for an administrative offense entailing the application of administrative punishment in the form of disqualification, a person can be brought to administrative responsibility no later than one year from the date of commission of the administrative offense, and in case of a continuing administrative offense - one year from the date its detection.

A copy of the disqualification decision that has entered into force is sent by the court that issued it to the body authorized by the Government of the Russian Federation or its territorial body.

The disqualification order must be immediately executed by the person brought to administrative responsibility by terminating management of the legal entity (Article 32.11 of the Code of Administrative Offenses of the Russian Federation). Execution of the decision on disqualification is carried out by terminating the agreement (contract) with the disqualified person for

carrying out activities related to the management of a legal entity[61].

In accordance with Article 32.11 of the Code of Administrative Offenses of the Russian Federation, a body authorized by the Government of the Russian Federation has formed a register of disqualified persons, information from which must be open for review. Interested parties have the right to receive information from such a register in the form of extracts about specific disqualified persons for a fee. The procedure for creating and maintaining the register, as well as the amount of fees for providing information from it

determined by the Government of the Russian Federation[62].

A person entering into an agreement (contract) to carry out activities to manage a legal entity is obliged to request information about the presence of disqualification of an individual

persons in the body maintaining the register of disqualified persons[63].

Let's consider what administrative offenses are punishable by disqualification. In accordance with paragraph 2 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, violation of labor and labor protection legislation by a person previously subjected to administrative punishment for a similar administrative offense entails disqualification for a period of one to three years.

Chapter 14 “Administrative offenses in the field of entrepreneurial activity” of the Code of Administrative Offenses of the Russian Federation also contains a number of articles providing for disqualification as a punishment. Thus, according to Article 14.12 of the Administrative Code, fictitious bankruptcy, i.e. knowingly false announcement by the head of a legal entity or an individual entrepreneur of his insolvency, including the application of these persons to the arbitration court with an application to declare the debtor bankrupt if he has the opportunity to satisfy the creditors' claims in full, entails, as one of the sanctions, disqualification for a period of up to three years; deliberate bankruptcy, i.e. deliberately creating or increasing the insolvency of a legal entity or individual entrepreneur entails disqualification for the same period.

In accordance with Article 14.21 of the Code of Administrative Offenses of the Russian Federation, improper management of a legal entity, i.e. the use of powers to manage an organization contrary to its legitimate interests and (or) the legitimate interests of its creditors, resulting in a decrease in the organization’s own capital and (or) the occurrence of losses, entails the imposition of an administrative fine or disqualification, including for a period of up to three years.

In addition, according to Article 14.22 of the Code of Administrative Offenses of the Russian Federation, disqualification for up to three years or the imposition of an administrative fine are provided as sanctions for the conclusion by a person performing managerial functions in an organization of transactions or the commission of other actions that go beyond the scope of his powers.

Disqualification as an alternative to imposing an administrative fine is also provided for in clause 4 of Article 14.25 of the Code of Administrative Offenses of the Russian Federation for officials for submitting to the body carrying out state registration of legal entities documents containing knowingly false information, if such an action does not contain a criminal offense.

Particular attention should be paid to Article 14.23 of the Code of Administrative Offenses of the Russian Federation, which provides for an administrative fine for a disqualified person carrying out activities to manage a legal entity during the period of disqualification - this offense entails the imposition of an administrative fine. The conclusion of an agreement (contract) with a disqualified person for the management of a legal entity, as well as the failure to apply the consequences of its termination, also entails the imposition of a fine on the legal entity.

As we can see, the legislator has provided for the creation of a strict control mechanism aimed at preventing disqualified persons from engaging in professional activities during the period of disqualification.

Disqualification consists of depriving an individual of the right to fill positions in the federal state civil service, positions in the state civil service of a constituent entity of the Russian Federation, positions in the municipal service, hold positions in the executive body of a legal entity, join the board of directors (supervisory board), carry out entrepreneurial activities in managing a legal entity. person, as well as to manage a legal entity in other cases provided for by the legislation of the Russian Federation. An administrative penalty in the form of disqualification is imposed by a judge.

Disqualification is established for a period of six months to three years.

Disqualification may be applied to persons holding positions in the federal state civil service, positions in the state civil service of a constituent entity of the Russian Federation, positions in the municipal service, persons performing organizational, administrative or administrative functions in a body of a legal entity, members of the board of directors (supervisory board ), persons engaged in entrepreneurial activities without forming a legal entity, as well as persons engaged in private practice.

Disqualification can be established and applied only as a primary administrative penalty.

Administrative punishment in the form of disqualification can only be applied to an individual entitled in accordance with the definition contained in Art. 2.4 of the Code of Administrative Offenses, the powers of an official, as well as to persons engaged in business activities without forming a legal entity (see commentary to this article). The application of administrative punishment in the form of disqualification to individual entrepreneurs is associated with a restriction of the right of citizens to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law, enshrined in Part 1 of Art. 34 of the Constitution of the Russian Federation. In this case, in accordance with Part 3 of Art. 55 of the Constitution of the Russian Federation allows for legitimate restrictions on constitutional rights established by law.

Disqualification can be applied to individuals operating in commercial, non-profit organizations that are legal entities, regardless of their organizational and legal form. In relation to administrative penalties that provide time parameters for their execution, the minimum and maximum periods of disqualification established by part 2 of the commented article are the longest (cf. part 2 of article 3.8 of the Code of Administrative Offenses).

Within the meaning of Part 3 of the commented article, the bodies of a legal entity are understood to be the bodies through which a legal entity acquires civil rights and assumes civil responsibilities. The status of the bodies of a legal entity is determined by the Civil Code, federal laws, decrees of the Government of the Russian Federation, decrees of the President and constituent documents adopted (concluded or approved) in accordance with them - the charter and (or) the constituent agreement. In cases provided for by federal law, a legal entity that is a non-profit organization may act on the basis of the general regulations on organizations of this type. The bodies of a legal entity do not include its separate divisions - representative offices and branches; in accordance with Part 3 of Art. 55 of the Civil Code cannot be vested with the powers of a legal entity.

In accordance with Part 3 of the commented article, disqualification can also be applied to an arbitration manager - a person appointed by an arbitration court to conduct bankruptcy procedures and exercise other powers established by Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy) " Administrative liability for the implementation by a disqualified person of activities related to the management of a legal entity is established by Art. 14.23 Code of Administrative Offences.

The procedure for executing the decision on disqualification is determined by Art. 32.11 Code of Administrative Offenses of the Russian Federation.

For committing administrative offenses under Part 1 of Art. 14.12 (fictitious bankruptcy), part 2 of Art. 14.12 (deliberate bankruptcy), Art. 14.13 (illegal actions in bankruptcy), Art. 14.21 (improper management of a legal entity), Art. 14.22 (conducting transactions and other actions that go beyond the established powers) of the Code of Administrative Offenses, an administrative penalty in the form of disqualification is imposed by a judge of the arbitration court. When committing administrative offenses under Part 2 of Art. 5.27 of the Code of Administrative Offences, proceedings for which are carried out in the form of an administrative investigation (see commentary to Article 28.7), the disqualification order is made by a judge of the district court.

2.8

Administrative suspension of activities

Suspension of activities is a subtype of disqualification. This measure applies exclusively to entrepreneurs whose functioning is dishonest.

If facts of dishonesty are discovered, 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 essence of the situation, as well as provide the guilty person with the opportunity to eliminate its negative consequences. If all conditions are met before the expiration of the established 90 days, the entrepreneur’s activities can be restored ahead of schedule.

Arbitrage practice

It should be noted that in reality the exercise of the right of disqualification is relatively rare. In judicial practice, sentences with this type of punishment are very rarely passed. 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, there is no information in the scientific literature regarding this problem - research specialists in the field of jurisprudence, unfortunately, do not seek to study this topic.

Judicial practice under Article 3.11 of the Code of Administrative Offenses of the Russian Federation:

Supreme Court decision: Resolution No. 18-AD15-1 of 02/11/2015 Judicial Collegium for Administrative Cases, supervision

Decision of the Supreme Court: Determination N 302-КГ16-5996 of June 20, 2016 Judicial Collegium for Economic Disputes, cassation

Decision of the Supreme Court: Determination N 309-КГ16-7483 dated 06/02/2016 Judicial Collegium for Economic Disputes, cassation

Decision of the Supreme Court: Determination No. VAS-7775/10 dated June 23, 2010 Collegium for Civil Legal Relations, supervision

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