No business can do without administrative fines. Did you receive an unfavorable decision based on the results of the audit? - Try to appeal it.
Firstly, you can, in principle, disagree with the violations imputed to you. After all, the supervisory authority often interprets the law in favor of the budget.
Secondly, it is not forbidden to refer to your statements about mitigating circumstances (part 3 of article 4.1, article 4.2 of the Code of Administrative Offenses of the Russian Federation) or the insignificance of the offense (clause 21 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5 “On some issues arising from the courts when applying the Code of the Russian Federation on Administrative Offenses"), not taken into account by the controllers. In the first case, the fine may be reduced to the minimum amount provided for in the relevant article (Part 1 of Article 4.1 of the Code of Administrative Offenses of the Russian Federation). In the second case, there is no fine at all - the violator will be given an oral reprimand (Article 2.9 of the Code of Administrative Offenses of the Russian Federation).
Finally, if your company is a small or medium-sized business, then the administrative penalty in the form of an administrative fine can be replaced with a warning (part 3 of article 1.4, part 3 of article 3.4, article 4.1.1 of the Code of Administrative Offenses of the Russian Federation).
Contrary to popular belief, you can challenge an administrative decision not only in court. On-site inspections are carried out by territorial bodies of the relevant departments. Therefore, the company has the right to send a complaint to a higher supervisory authority - in the hope that it will mitigate the unfavorable decision. And who, if not the accountant of a small enterprise, will take care of reducing penalties? We'll tell you how to proceed.
Who should I address the complaint to?
First, let's decide where to complain. Options are provided for in Article 30.1 of the Code of Administrative Offenses (hereinafter referred to as the Code). In accordance with paragraph 3 of part 1 of this article, a decision in a case of an administrative offense made by an official can be appealed (clause 3 of part 1 of article 30.1 of the Code of Administrative Offenses of the Russian Federation):
- to a higher authority;
- to a higher official;
- to the district court at the place of consideration of the case.
We will always make it to court in time. First, let’s send the complaint “up the corporate ladder.”
Let's say a decision was made against your company under Article 5.27 (parts 1, 3, 4, 6) or 5.27.1 (parts 1–4) of the Code. State supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, and consideration of cases of relevant administrative offenses is carried out by Rostrud (Part 1 of Article 23.12 of the Code of Administrative Offenses of the Russian Federation). The list of persons authorized on behalf of Rostrud to consider such cases is presented in Part 2 of Article 23.12 of the Code. This list determines the hierarchy of officials and departments of Rostrud, on the basis of which the superior addressee for the complaint is selected.
Another example, this time more specific. Let’s assume that your company is fined for failure to use a plot of land for agricultural purposes (Part 2 of Article 8.8 of the Code of Administrative Offenses of the Russian Federation). The resolution was issued by the head of the Rosselkhoznadzor Office for the Ryazan and Tambov regions. In accordance with Part 2 of Article 23.15 of the Code, such a decision must be appealed directly to the Federal Service for Veterinary and Phytosanitary Surveillance (Rosselkhoznadzor), located in Moscow. The complaint will be considered by the head of the relevant structural unit of Rosselkhoznadzor - the Land Supervision Department - or his deputy. You can complain about the deputy’s decision to his supervisor. In turn, the decision of the head of the above-mentioned Department is appealed to the deputy head of Rosselkhoznadzor. Well, above that there is only a court at the location of Rosselkhoznadzor.
So, in court you can appeal not only the initial decision, but also the decision on the complaint made by a higher official. Details are in Article 30.9 (parts 1, 3) of the Code.
The complaint does not have to indicate the name of the structural unit of the higher authority. The complainant usually does not have such information, and is not required to have it. The higher authority will act in accordance with internal regulations and will independently determine who will exercise control over the appealed decision. Simply put, he will “describe” your complaint to the direct executor.
A fundamental nuance: if a complaint against a decision in a case of an administrative offense was received by the court and a higher authority, a higher official, the complaint is considered by the court (Part 2 of Article 30.1 of the Code of Administrative Offenses of the Russian Federation). Conclusion: you should not go to court until a decision on your complaint is made by a higher authority. Otherwise, an appeal based on subordination loses all meaning.
Who has the right to appeal a decision on an administrative violation?
In accordance with Article 30.1 of the Code of Administrative Offenses of the Russian Federation, a decision in a case of an administrative offense can be appealed by the persons specified in Articles 25.1 - 25.5.1 of the Code of Administrative Offenses of the Russian Federation. That is, the following participants in the proceedings have the right to appeal the decision:
- a person against whom proceedings are being conducted for an administrative offense (Article 25.1 of the Code of Administrative Offenses of the Russian Federation);
- victim (Article 25.2 of the Code of Administrative Offenses of the Russian Federation);
- legal representatives of an individual (Article 25.3 of the Code of Administrative Offenses of the Russian Federation);
- legal representatives of a legal entity (Article 25.4 of the Code of Administrative Offenses of the Russian Federation);
- defender and representative (Article 25.5 of the Code of Administrative Offenses of the Russian Federation);
- Commissioner under the President of the Russian Federation for the protection of the rights of entrepreneurs (Article 25.5.1 of the Code of Administrative Offenses of the Russian Federation).
In accordance with Part 1.1 of Article 30.1 of the Code of Administrative Offenses of the Russian Federation, a decision in a case of an administrative offense made by a judge can also be appealed to a higher court by an official authorized in accordance with Article 28.3 of this Code to draw up a protocol on an administrative offense.
A decision on an administrative offense can be appealed, depending on who made the decision, to a higher body, a higher official, a district court or a higher court (Article 30.1 of the Code of Administrative Offenses of the Russian Federation)
Result of appeal
When considering a complaint, the legality and validity of the decision made is checked (clause 8, part 2, article 30.6 of the Code of Administrative Offenses of the Russian Federation). And yet, what exactly can the complainant count on?
One of four possible solutions is possible (Part 1 of Article 30.7 of the Code of Administrative Offenses of the Russian Federation):
- to leave the resolution unchanged and the complaint unsatisfied;
- on changing the resolution, unless this increases the administrative punishment or otherwise worsens the position of the person in respect of whom the resolution was made;
- on the cancellation of the decision and on the termination of the proceedings in the case in the presence of at least one of the circumstances provided for in Articles 2.9 (due to insignificance), 24.5 (in the presence of circumstances excluding the proceedings in the case) of the Code, as well as in the absence of proof of the circumstances on the basis of which the decision was made ;
- on the cancellation of the decision and on the return of the case for a new consideration to the body, official, authorized to consider the case, in cases of significant violation of the procedural requirements provided for by the Code, if this did not allow a comprehensive, complete and objective consideration of the case.
note
An organization can go directly to court or challenge decisions, actions (inaction) of a body, organization, person vested with state or other public powers, to a higher authority, organization in the order of subordination, or from a higher person in the order of subordination, or use other out-of-court procedures for resolving disputes ( Part 1 of Article 218 of the Code of Administrative Proceedings).
Information on the last option: the procedural requirements are established by chapters 24–29 of the Code.
The decision on the complaint is announced immediately after it is made. A copy of the decision on the complaint, within up to three days after its issuance, is handed over or sent to the legal representative of the legal entity in respect of whom the decision was made in the case (Parts 1, 2 of Article 30.8 of the Code of Administrative Offenses of the Russian Federation).
Where to file a complaint
It would seem that the complaint must be submitted directly to the person who is authorized to consider it (in person or by mail). This procedure is permitted by Part 3 of Article 30.2 of the Code. However, this method is not the main one.
In accordance with Part 1 of Article 30.2 of the Code, a complaint against a decision in a case of an administrative offense is submitted to the body or official who issued the decision on the case. And they are obliged, within three days from the date of receipt of the complaint, to send it with all the materials of the case to a higher authority, a higher official. Agree, this procedure ensures that the “supreme” authority is familiar with the case. At the same time, both authorities are indicated in the addressable part of the complaint, for example: “To Rosselkhoznadzor through the Office of the Federal Service for Veterinary and Phytosanitary Surveillance for the Ryazan and Tambov Regions.”
Commentary to Art. 30.2 Code of Administrative Offenses
1. This article defines certain aspects of filing and moving a complaint against a decision in a case of an administrative offense in the event of a decision imposing an administrative penalty.
It is necessary to understand that a complaint can be filed directly with a court, a higher authority, or a higher official authorized to consider it. In this case, it is immediately sent to the body that adopted the decision on the case to fulfill the requirements of Part 1 of Art. 30.2 of the Code of Administrative Offenses of the Russian Federation or a district judge makes a request to request the case materials to the entity that considered the case on the merits, who in turn is obliged to forward all the materials he has to the district judge.
When a complaint is erroneously addressed to a court, body, or official who is not authorized to consider this complaint, it is transferred by appointment to a judge, body, or official authorized to consider it in accordance with the provisions of Part 1 of Article 30.1 of the Code of Administrative Offenses of the Russian Federation.
A complaint against a judge’s decision to impose an administrative penalty in the form of administrative arrest must be sent to a higher court on the day the complaint is received (Part 2 of Article 30.2 of the Code of Administrative Offenses of the Russian Federation).
Thus, the Code of Administrative Offenses does not require the complainant to attach any documents to it, including a notice of delivery of the complaint to the administrative body; There are no requirements for the form and content of the complaint, therefore, it can be drawn up in any form (Article 30.2 of the Administrative Code); consideration of the complaint can be carried out without calling the body or official who issued the appealed decision; the period for consideration of a complaint (Article 30.5 of the Administrative Code) is calculated only from the moment the complaint is received with all the materials of the case of an administrative offense, the presentation of which is entrusted to the body that issued the appealed decision (Article 30.2 of the Administrative Code), etc.
2. If consideration of the complaint does not fall within the competence of the judge or official who appealed the decision in the case of an administrative offense, the complaint is sent for consideration according to jurisdiction within three days (Part 4 of Article 30.2 of the Administrative Code of the Russian Federation).
3. Based on the Law of the Russian Federation of April 27, 1993 N 4866-1 (as amended on December 14, 1995) “On appealing to court actions and decisions that violate the rights and freedoms of citizens” (Rossiyskaya Gazeta. 1993. May 12; 1995. December 26 ) actions (decisions) of state bodies, local governments, institutions, enterprises and their associations, public associations and officials, civil servants, which can be appealed to the court, include collegial and individual actions (decisions), including the presentation of an official information that became the basis for taking actions (making decisions), as a result of which:
the rights and freedoms of a citizen are violated;
obstacles have been created for a citizen to exercise his rights and freedoms;
a citizen is unlawfully assigned any duty or is unlawfully held accountable for any purpose.
A citizen has the right to file a complaint against actions (decisions) that violate his rights and freedoms, either directly to the court, or to a higher-ranking government body, local government body, institution, enterprise or association, public association, official, civil servant.
Having accepted the complaint for consideration, the court, at the request of the citizen or on its own initiative, has the right to suspend the execution of the appealed action (decision).
4. Complaints against decisions in cases of administrative offenses are not subject to state duty (Part 5 of Article 30.2 of the Code of Administrative Offenses of the Russian Federation).
5. A complaint against a judge’s decision to impose an administrative penalty in the form of administrative suspension of activities must be sent to a higher court on the day the complaint is received (see commentary to Article 3.12 of the Code of Administrative Offenses of the Russian Federation).
Don't miss the appeal deadline
In general, a complaint against a decision in a case of an administrative offense can be filed within 10 days from the date of delivery or receipt of a copy of the decision (Part 1 of Article 30.3 of the Code of Administrative Offenses of the Russian Federation). After this period, the resolution is considered to have entered into legal force. In this case, it can only be appealed through the court (Part 1 of Article 30.13 of the Code of Administrative Offenses of the Russian Federation).
However, the deadline for appeal, missed for a valid reason, can be restored. To do this, you must submit a petition (Part 2 of Article 30.3 of the Code of Administrative Offenses of the Russian Federation).
The most important thing is not to make a mistake when calculating the 10-day period.
The calculation of deadlines is regulated by Article 4.8 of the Code. From Part 1 of this article it follows that the period calculated in days and days is not the same thing. If the period is calculated in days and its end falls on a non-working day, then the last day of the period is considered to be the first working day following it (Part 3 of Article 4.8 of the Code of Administrative Offenses of the Russian Federation). But for a period calculated in days, such “indulgence” (usual for an accountant) is not provided.
The 10-day period begins the next day from the date of delivery or receipt of a copy of the resolution (Part 1 of Article 4.8 of the Code of Administrative Offenses of the Russian Federation).
Let's assume you received the resolution by mail on November 1, 2017. The countdown of the 10-day period should begin on November 2. This means the deadline ends on November 11th. Even though it is Saturday, the last day of the deadline cannot be transferred.
