<<
>>

Introduction

Urgency of a theme of research. Appropriate observance of antimonopoly rules is an indispensable condition of successful functioning and development of market relations. Interdictions, restrictions and the duties established by the antimonopoly law of Russia, are directed on bar of claim by lapse of time of monopolisation of the market and application of unfair methods of rivalry of managing subjects.

Monopolisation of the market and an unfair competition harm not only to managing subjects as to direct participants of the market, but also consumers. An antipode of the named phenomena - a competition.

Compulsion - one of methods of maintenance of maintenance of a competition in the Russian Federation. It is applied along with belief. Administrative responsibility as a compulsion kind plays it a key role. The relation of the Russian legislator to questions of administrative responsibility for antimonopoly law infringements testifies to it. Being RSFSR originally fixed in the Law from 22.03.1991 № 948-1 «About a competition and restriction of monopolistically activity in the commodity markets», the administrative liability of infringement of the antimonopoly law of the Russian Federation was continuously improved since then.

From the legislator kinds, and the sizes of administrative punishments, an order of their appointment, the condonation mechanism, manufacture on affairs about the specified administrative violations and t were exposed to numerous audit a set of structures of administrative violations in sphere of antimonopoly regulation. And. Last decade actions of the legislator on complex change of the antimonopoly law, the legislation on responsibility (including administrative) for infringement of antimonopoly rules have received the informal name of "antimonopoly packages» which by present time is four.

To questions of administrative responsibility for infringements of the antimonopoly law of Russia special attention is given also by courts of justice. Plenum of the Supreme Arbitration Court of the Russian Federation in 2008 has analysed available problems in antimonopoly law application, including connected with attraction to administrative responsibility, and has published the decision from 30.06.2008 № 30 «About some questions arising in connection with application by arbitration courts of the antimonopoly law». Earlier the Presidium YOU Russia has published the circular from 30.03.1998 № 32 «the Review of practice of the resolution of disputes, connected with antimonopoly law application».

The constitutional Court of the Russian Federation last years repeatedly addressed to problem questions of administrative responsibility for infringements of the antimonopoly law of the Russian Federation. It explained a difference between various used in sphere of protection of competitive relations coercive measures, specified in features of appointment of the administrative penalties applied in given sphere, considered the questions, manufactures concerning features on affairs about separate administrative violations in sphere of antimonopoly regulation, etc.

The steadfast attention gives to questions of administrative responsibility for antimonopoly law infringements, certainly, and Federal antimonopoly service of Russia. It last years has prepared set of letters, explanations, methodical recommendations and the grants devoted to questions of attraction to administrative responsibility, an order of appointment of punishments, qualifications of those or other acts, etc.

Questions of antimonopoly regulation were beyond especially national interests and have found reflexion in international agreements between members of the Euroasian economic community, such as the Agreement on uniform principles and competition rules (09.12.2010 are concluded), the Contract which has replaced it on the Euroasian economic union (it is signed 29.05.2014). Earmonizatsija and unification reguljativnyh norms in competition sphere in the markets of the countries-participants EAES should be reflected in norms delictual which carry basically otsylochnyj character. Questions of a liability of infringement of antimonopoly interdictions in the transboundary markets though and not named directly as administrative, are settled by the specified international documents and constitute a part of the Russian legal system. Rough economic integration gives a new impulse to research of questions of an administrative liability of infringement of antimonopoly rules.

Administrative responsibility is one of the most effective ways of protection of a competition as is an operative and imperious variant of reaction to infringements. The lawful and fair application of this measure having powerful educational and precautionary influence, is capable to lead to fast restoration of the law and order in sphere of competitive relations. The last distinguishes measures of responsibility from other measures, including belief measures.

Administrative and judiciary practice visually show, that attraction questions to administrative responsibility for infringements of the antimonopoly law of the Russian Federation frequently dare from different inconsistent positions. This factor, and also complexities of qualification of anticompetitive acts, collisions reguljativnyh and guarding norms of the antimonopoly law, feature of awarding punishment and manufacture on administrative affairs of the specified category, the international integration on the post-Soviet territory, including concerning competition protection, also serve as the reason of special attention to problems of administrative responsibility for infringements of the antimonopoly law of the Russian Federation many researchers, including the author of the present work.

Degree of a scientific readiness of a theme. L.V.Kunshinoj's dissertational researches, A.JU are devoted questions of administrative responsibility for infringements of the antimonopoly law of the Russian Federation. The Sokolov, etc. However it is necessary to notice A.M.Evsikova, that the given researches about - were found or before reforming of the legislation of the Russian Federation about administrative responsibility in the named sphere, or, in bolshej parts, on the basis of the empirical material existing before reforming.

Questions of administrative responsibility for antimonopoly law infringements are partially mentioned also in R.G.Agaeva, I.A.Shkaredenka, K.L.Voznesensky, P.L.Lobanovsky, P.M.Vladimirovoj, A.N.Varlamovoj, E.A.artemevoj, S.A.Karlov's dissertations, I.S.

Yanovich, A.A.Ovodova, A.J.Kineva, monographic editions and K.J.Toteva, N.I.Klein, N.A.Barinov, M.J.Kozlovoj, K.A.Pisenko, I.A.Tsindeliani, B.G.Badmaeva, E.S.Hohlova, A.V.Egorushkina, E.A.Beljakovoj's articles, E. V.Ovcharovoj, N.E.Salishchevoj, E.I.Charnopis and other scientists.

E [roblemy separate infringements of the antimonopoly law and antimonopoly infringements in certain spheres of managing are considered in O.N.Zimenkovoj's dissertational works, S.A. E [arashchuka, E.Markvarta, V.I.Eremenko, D.I.Seryogin, L.N.Borisovoj, S.N.Kondratov skoj, A.S.Sulakshinoj, A.S.Sukhorukov, E.A.Isajchevoj, S.V.Kuzjakina, L.V.Zajtsevoj, etc. monographies and articles of V.I.Eremenko, D.A.Petrov,

Island A. Eopoдова, A.J.Kineva etc.

At the same time, in the majority of these works and other researchers are considered, as a rule, only separate aspects of administrative responsibility for antimonopoly law infringements, and the detailed analysis material and rules of procedure KoAP the Russian Federation in their interrelations with reguljativnymi norms of the antimonopoly law of the Russian Federation it was not spent. Besides, some conclusions made in works of listed authors, also have lost the urgency in connection with essential change of the antimonopoly law of the Russian Federation.

The public relations arising in connection with fulfilment of administrative violations in sphere of antimonopoly regulation became object of dissertational research.

Subject of dissertational research norms Russian and international law about a competition have constituted, legislations on administrative violations (both material, and remedial), the arbitration remedial legislation, judiciary practice of arbitration courts and vessels of the general jurisdiction, practice of the Constitutional Court of the Russian Federation, pravoprimenitelnaja practice of Federal antimonopoly service of Russia, research of scientists concerning administrative responsibility for infringements of the antimonopoly law of the Russian Federation.

Research objective are the deep theoretical judgement of legal regulation of administrative responsibility for infringements of the antimonopoly law of the Russian Federation, the analysis of problems pravoprimenenija in the specified area and development of effective offers under their permission.

The primary goals of dissertational research:

1) studying and the analysis of a legal basis of administrative responsibility for infringements in sphere of antimonopoly regulation;

2) revealing of properties of a competition which cause its value as the phenomenon protected by the law;

3) research of features of administrative responsibility for infringements of the antimonopoly law of the Russian Federation;

4) judgement of features of designing of legal structures of administrative violations in the specified sphere of antimonopoly regulation;

5) consideration of legal structures of the most harmful administrative violations in sphere of antimonopoly regulation, research of the basic problems arising in process pravoprimenenija;

6) research of system of administrative punishments for fulfilment of the specified administrative violations, and also features of their appointment;

7) the analysis of features of procedure of attraction to an administrative liability of infringement of the antimonopoly law of the Russian Federation;

8) preparation of recommendations about perfection of the legislation on administrative responsibility in sphere of antimonopoly regulation.

The theoretical basis of research was constituted by works of scientific - jurists A.I.Elistratova, N.M.Korkunova, M.D.Zagrjatskogo, etc. At a dissertation writing works of scientists - administrativistov A.B.Agapov, J.S.Adushkina, A.P.Alekhin, D.N.Bahraha, K.S.Belsky, I.I.Veremeenko, I.A.Galagana, A.A.Dyomin, V.V. Denisenko, A.S.Dugentsa, M.I.Eropkina, A.B.Zelentsova, L.A.Kalininoj, A.V.Kirina, S.D.Knyazev, J.M.Kozlova, N.M were used. A horse-flesh, P.I.Kononova, A.P.Korenev, B.M.Lazareva,

A. E.Luneva, E.B.Lupareva, V.A.Lorija, I.V.Maksimova, V.M.Manohina, M.J.Maslennikov, I.V.Panovoj, G.I.Petrov, L.L.popova, N.G. O.S.Rogachevoj, B.V.Rossinsky, N.G.Salishchevoj, V.E.Sevrjugina, P.P.Serkova,

B. D.Sorokin, J.N.Starilova, S.S.Studenikina, M.S.Studenikinoj, JU.A.Tikhomirov, S.D.Hazanova, N.J.Hamanevoj, S.E.Chajanova, A.P.Shergina, O.M.Jakuby, TS.A.Jampolsky, etc.

Works of foreign scientists in the field of D.T.Armentano, K.Marx, A.Smith's economy, etc., and also works of the Russian scientists - A.M.Arhipov, A.V.Grachev, E.V.Darovsky, J.A.Kanatchikova, N.N.Nikitinoj's economists, M. In Petrishcheva, B.B.Urdasheva etc. were besides, analyzed.

The methodological basis of research is constituted by general scientific methods: deduction, an induction, the analysis, synthesis, dialectic, and also chastnonauchnye knowledge methods: rather-legal, formally - legal, a method of generalisation of judiciary practice, istoriko-legal, teoretiko-prognostichesky methods. In work target, historical and system approaches are applied.

As empirical base of research judiciary practice of arbitration courts and general jurisdiction vessels on disposal of legal proceeding about attraction of guilty persons to administrative responsibility for antimonopoly law infringements, on revision of decisions about attraction of guilty persons to administrative responsibility for antimonopoly law infringements, and also by a recognition void decisions and instructions of antimonopoly bodies by results of disposal of legal proceeding about antimonopoly law infringement has served. The author of dissertation analyzed the certificates of antimonopoly bodies accepted during disposal of legal proceeding about infringement of the antimonopoly law and affairs about attraction to administrative responsibility, decisions FAS of Russia by results of revision of decisions about appointment of the punishments which have been taken out by territorial antimonopoly bodies, certificates of the Constitutional Court of the Russian Federation, the decision of Plenums YOU the Russian Federation and BC the Russian Federation, recommendations of scientific and advisory councils at arbitration courts.

Scientific novelty of research. The competition as an economic category consists in competitiveness of managing subjects for the best result of the activity. Being invested with the legal form, the competition ceases to be purely economic category and turns in economic-legal. Itself legal oposredovanie a competition it is caused by necessity of protection of value which is given by a competition as an economic category. This value consists in possibility of ascending development of the commodity markets from the point of view of satisfaction of consumers, and it is caused by that rivalry in the market is in a balance condition. Balance of rivalry (competition) consists in absence at subjects of the market of possibility unilaterally to define managing conditions. It can and should be provided by means of the thin legal adjustment realised through reguljativnuju and guarding subsystems which for effective legal regulation should be balanced. However in the conditions of antimonopoly law rapid development it is observed defined them is sirovannost. Revealing of this razbalansirovannosti and development of recommendations about its elimination constitute novelty of the present work.

The positions which are taken out on protection.

1. Necessity of differentiation of concepts «administrative violation in sphere of antimonopoly regulation» and «anticompetitive administrative violation» is proved.

In sphere of antimonopoly regulation it is necessary to understand the guilty illegal act of the physical or legal person harming public relations as administrative violation, settled by the antimonopoly law for which in KoAP the Russian Federation appointment of administrative punishment is provided. Anticompetitive administrative violation is the guilty illegal act of the physical or legal person breaking equilibrium rivalry of managing subjects in the commodity market or creating threat of its infringement for which in KoAP the Russian Federation appointment of administrative punishment is provided.

2. With a view of revealing of features of separate kinds of administrative violations it is offered to differentiate all structures of administrative violations in sphere of antimonopoly regulation on two groups depending on patrimonial object of an encroachment:

1) anticompetitive administrative violations (item 14.9, 14, 14.40, 14.3 KoAP the Russian Federation (if advertising is the unfair competition certificate);

2) administrative violations in sphere of an order of the management established by the antimonopoly law (chch. 2 items 19.5, item 19.8 KoAP the Russian Federation).

Other structures of administrative violations carried to jurisdiction of antimonopoly bodies according to item 23.48 KoAP the Russian Federation, according to the author, to sphere of antimonopoly regulation directly do not concern. They, first of all, protect public relations in power sphere (item 9.15, 9.21 KoAP the Russian Federation), the organised auctions (ch. 6 items 14.24 KoAP the Russian Federation), energosberezhenija (chch. 6 and 12 items 19.16 KoAP the Russian Federation), advertising if it is not the unfair competition certificate (14.3, chch. 4 and 5 items 14.3.1, chch. І, 3-5 items 14.38, 19.31 KoAP the Russian Federation), in trade sphere (item 14.41, 14.42 KoAP the Russian Federation).

3. It is offered to expand the list of structures of anticompetitive administrative violations by an establishment of administrative responsibility of managing subjects for infringement of antimonopoly requirements to the auctions, inquiry of quotations of the prices about the goods, inquiry of offers, having provided, thereby, protection from infringement of interdictions and the duties established by item 17 of the Law on protection of a competition as now at detection of infringement of the given imperative requirements antimonopoly bodies are in most cases authorised to take measures only presekatelnogo character including to give out corresponding instructions.

4. It is given reason, that the important feature of designing of legal structures of the majority of anticompetitive administrative violations with the account blanketnosti their dispositions - wide use of estimated concepts for definition of their objective party (abusing, conscientiousness, reasonable limits, restriction of a competition, etc.). It is proved, that this feature demands application of special means pravotvorcheskoj and pravoprimenitelnoj the activity, providing correctness of application of estimated concepts. Streamlining and terminology ordering, development and fastening of signs of display of estimated concepts, an establishment of criteria of an estimation of those or other phenomena and processes can be carried to them.

5. The collision of the guarding norms fixed in item 14.31, 14.31.1 KoAP the Russian Federation (regarding infringement of the order of pricing established by standard legal acts) and item 14.6 KoAP the Russian Federation (infringement of an order of pricing) is revealed.

It is proved, that at differentiation of the specified structures it is necessary to consider not only the status of the subject in the market (domination presence), but also the fact of its use with causing or occurrence of threat of detrimenting to competitors and (or) to other persons. At qualification of the acts breaking the established order of pricing, antimonopoly bodies and vessels should find out, whether such act by the subject occupying a leading position is made, whether such act by abusing by the leading position causing a damage to competitors and either) other persons or creating such threat is.

As a way of the permission of a collision the exception of sphere of application of item 14.6 KoAP the Russian Federation of the acts punishable according to item 14.31, 14.31.1 KoAP the Russian Federation is offered.

6. The possible collision of structures of the offences provided by item 14.9 and ch is revealed and described. 3 items 14.32 KoAP the Russian Federation arising at fulfilment by subjects of public authority of anticompetitive acts which are made out by the agreement or have continuation in the form of making agreement. Fulfilment of anticompetitive acts by public authority bodies are forbidden item 15 of the Law on competition protection (the interdiction is provided with item 14.9 KoAP the Russian Federation), and the conclusion of the agreements limiting a competition, - item 16 of the same Law (ch. 3 items 14.32 KoAP the Russian Federation).

According to the author if the competition is limited to certificates or acts of subjects of public authority directly, and for their realisation counter will of other subject is not required, application is come under by norm ch. 1 items 15 of the Law on competition protection (and according to item 14.9 KoAP the Russian Federation) irrespective of, whether the agreement has been entered into with participation of the subject of public authority subsequently. If the subject of public authority makes acts, though and falling under ch. 1 item 15 of the Law on competition protection, however, they became possible as a result of the reached agreement, to application comes under to Law item 16 (and ch. 3 items 14.32 KoAP the Russian Federation).

7. Necessity of perfection of the mechanism of appointment of the administrative penalty on ch is proved. 1 items 14.32 KoAP the Russian Federation proceeding from initial cost of a subject of the auctions as in item 3.5 KoAP the Russian Federation this kind of the administrative penalty is not carried to number of "multiple administrative penalties» that attracts a collision of named articles in case the sum of the penalty calculated proceeding from initial cost of a subject of the auctions, exceeds the general top limit of the penalty for legal bodies (1 million rbl.).

Besides, ch. 1 item 14.32 KoAP the Russian Federation provides alternative ways of calculation of the penalty (multiply gain or the sum of expenses), however, conditions for a choice of one of ways are not regulated, that leads to excessive diskretsii. To raise level of a right protection of an interdiction follows by working out and fastening in KoAP the Russian Federation of general provisions on an order of an infliction of penalty of multiply initial cost of a subject of the auctions.

8. Instruction delivery about compulsory transfer in the budget of the income received as a result of infringement of the antimonopoly law is proved, that, is a measure of administrative suppression, instead of a measure kvaziadministrativnoj responsibility.

Comparison of signs of this coercive measure and administrative punishment leads to a conclusion, that except presence between them formal distinctions (a regulation in KoAP the Russian Federation), they do not coincide by the nature. At execution of the specified instruction the person loses only that, on what it and so could not count at due observance of the law and that it has extracted the illegal acts. Such measure does not bear in itself neither a legal loss, nor due educational influence. The given measure concerns group of a preventive punishment as eliminates disbalans «the market power», resulting wrongful acts.

9. It is given reason, that distribution of the information in the presence of unfair competition signs simultaneously by means of advertising and other ways (for example, on goods labels, in correspondence with counterparts under contracts) should attract administrative responsibility on set of articles 14.3 and 14.33 KoAP the Russian Federation.

The position of Plenum YOU the Russian Federation about necessity of qualification of such acts only under item 14.33 KoAP the Russian Federation is criticised. According to the author, inadequate use of advertising along with unfair competition different ways represents an encroachment simultaneously on some kinds of public relations (the relation in sphere of advertising and in competition sphere). In this connection, it is obviously necessary to qualify set of such acts on set of articles 14.3 and 14.33 KoAP the Russian Federation.

10. It is offered to extend special rules of manufacture on affairs about antikonkurentyh administrative violations to manufacture on affairs about the offences provided by item 14.3 (if advertising is the unfair competition certificate) and item 14.40 KoAP the Russian Federation.

Special rules of manufacture is a special and unique occasion to manufacture excitation on business (the decision of the commission of antimonopoly body), a special date started of a current of a limitation period of attraction to administrative responsibility, a presumption of date of revealing of anticompetitive administrative violations as commencing a suit dates antimonopoly body.

The named features of manufacture on administrative affairs are caused by complexity of revealing of anticompetitive offences, necessity of carrying out of the economic analysis for the purpose of the subsequent estimation of act of the person about conformity to the norms legally providing balance of a competition. Considering, that the offences provided by item 14.3 (if advertising is the unfair competition certificate) and item 14.40 KoAP the Russian Federations also are anticompetitive by the nature, concerning them special remedial rules of attraction to administrative responsibility also should be applied.

The theoretical and practical importance of work. Result of the carried out dissertational research is a number of independent conclusions and offers which can promote development of the legislation on administrative responsibility in sphere of antimonopoly regulation, to perfection pravoprimenitelnoj practice of antimonopoly bodies, to formation of uniformity of judiciary practice in the specified sphere, working out of decisions of Plenum of the Supreme Court of the Russian Federation, and also to the further development of the doctrine administratively-law of torts.

Dissertation positions can be used during educational process, in particular at reading of a course of lectures on discipline "Administrative law", at studying of the special courses devoted to administrative responsibility. They can be useful practical workers at carrying out of the actions directed on improvement of professional skill, and also at carrying out of the practical training devoted to problems of administrative responsibility in sphere of antimonopoly regulation.

Approbation of results of research. The dissertation is executed, discussed and retsenzirovana on chair of administrative law FGBOU IN «the Ural state legal university». Substantive provisions and conclusions of dissertational research have found reflexion in the published works and have passed practical and theoretical approbation within the limits of performances at sessions of expert groups Evropejsko - the Asian legal congress (2010 - 2013), participations in the spent research work specified by chair «legislation Perfection in sphere of realisation of kontrolno-supervising powers concerning enterprise activity». The basic results of dissertational work also have passed approbation in educational process within the limits of a subject matter the "Administrative law", a special course «Legal bases of kontrolno-allowing activity in the Russian Federation».

The work structure is caused by the purposes and research problems and consists of the introduction, three heads divided into 10 paragraphs, the conclusions and the bibliographic list.

<< | >>
A source: Titov Evgenie Evgenevich. ADMINISTRATIVE RESPONSIBILITY FOR INFRINGEMENTS of the ANTIMONOPOLY LAW of the Russian Federation. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg - 2015. 2015

More on topic Introduction:

  1. in introduction
  2. INTRODUCTION
  3. INTRODUCTION
  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
  8. Introduction
  9. INTRODUCTION
  10. INTRODUCTION
  11. Introduction
  12. Introduction
  13. INTRODUCTION
  14. Instead of Introduction …
  15. PRACTICAL INTRODUCTION OF RESULTS OF WORK
  16. 5. Attention strengthening to questions of legal introduction.