Responsibility for violation of mandatory requirements. Arbitration Court of the Orenburg Region. Self-regulatory organizations help with this

Responsibility for violation of standards (and NTD)

The nature of the requirements normative documents

Application of regulatory documents and the nature of their requirements

The International Standards Division of ISO/IEC recommends 2 ways to apply normative documents:

1. Direct application of a regulatory document in the relevant field of activity: in production, testing, measurements, product certification, services (GOST is indicated for fasteners, but not dimensions).

2. Introduction of normative documents of higher organizations into their own normative document, either as a link, or with a reprint of any section.

Russian standards(NTD) are used in government bodies by subjects economic activity(enterprises), NOR teams, and for all the obligatory requirements of the standard must be fulfilled.

Note: There may be such an economic situation when the products are mastered by the enterprise before the release of a new standard. The legislation of the Russian Federation allows non-distribution of the requirements of the new GOST to already mastered products, which are supplied in accordance with the contract (consumer priority). This priority is preserved even in the export version. For products imported into the Russian Federation: imported products cannot be sold within the Russian Federation if their parameters do not meet the standards of the Russian Federation.

The use of international and regional standards in the Russian Federation is possible on the basis of intergovernmental agreements on economic cooperation, and if these standards are recognized by the state. standard of the Russian Federation and are approved for use within the Russian Federation.

Any regulatory document may contain the following requirements:

1. Mandatory requirements that are mandatory for all enterprises and all forms of ownership, all teams and research institutes in accordance with the law or current regulations.

2. Alternative requirements and provisions of the standard are selective or additional norms to mandatory norms.

Note: Alternative requirements of the standard may become mandatory if they are stipulated in the supply contract (customer priority)

The requirements of the standards in their mandatory part are mandatory for all business entities, if this standard is referred to in design documentation, in a technical regulation, in a general regulation, or in a government directive. Compliance with the standard is the only way to achieve product compliance with the requirements of the regulation.

Alternative requirements of the standard help in the search for research and development, design organization of production, in conducting research, certification (setting compliance with customer requirements), but alternative requirements are not mandatory.

Responsibility, according to the law of the Russian Federation on standardization, for violation of standards and regulations is borne by legal entities and individuals, government bodies represented by managers and heads of administrations. Depending on the consequences of violating the standard, the law provides for:

1. Administrative liability, in accordance with the administrative code of the Russian Federation, a fine of up to 100 minimum dimensions wages.

2. Civil liability for violation of quality requirements is determined on the basis of the provisions of the Civil Code of the Russian Federation (reprimand, monetary sanctions, up to the release of the position held)

3. Criminal liability. Since January 1, 1997 criminal liability for deceiving the consumer regarding the quality of the goods established by the contract, especially if this product does not meet the safety requirements for environmental cleanliness, it can cause a mass epidemic or poisoning. The measure of criminal liability is established by the court in accordance with the procedural code of the Russian Federation (from 2 to 5 years in prison).

Note: By product industrial purpose criminal liability has not been established (if a man-made disaster did not occur due to the fault of this product).

22.05.2006

For many years, the mandatory requirements of state standards have been contained in departmental regulatory legal acts and regulatory and technical documents: state and industry standards (GOSTs, OSTs), building codes and regulations (SniPakh, SP, etc.), sanitary standards and rules (SANPiNakh, SanP) , guidance documents, guidelines and other rules.

The standard is the main regulatory and technical document containing a complete description of products: the range of indicators of its quality, the level of each of them, methods and means of measurement, rules for labeling, acceptance, transportation and storage of products.

Being interested in the production of standard products, the state made the standards mandatory by fixing the indicators of the standards in legal acts. Thus, the standards were equated with legal norms, the observance of which became the responsibility of the persons concerned.

With acceptance federal law dated December 27, 2002 No. 184-FZ “On technical regulation”, the previous system of technical regulation has radically changed; the main regulatory legal acts on which this system was based, and the by-laws adopted in pursuance of them, have become invalid, including the laws of the Russian Federation “On Standardization”, “On Certification of Products and Services”. Thus, the transition from "quality" as the main object of state regulation and control to the "safety" of consumer goods was completed.

On July 1, 2002, the Code of Administrative Offenses of the Russian Federation entered into force. It became the only federal legislative act that establishes liability for administrative offenses, including violation of the mandatory requirements of state standards.

Article 6.14 of the Code of Administrative Offenses of the Russian Federation provides for the responsibility of officials and legal entities for production or turnover ethyl alcohol, alcoholic or alcohol-containing products that do not meet the requirements state standards, sanitary rules and hygienic standards. Organizations may be responsible individual entrepreneurs those engaged in the purchase (import), supply (export), storage or retail sale of the said products, as well as their officials (persons equal to them). In Art. 6.14 the content of the objective side of the offense is formulated in the same way for all the named subjects. The sanction of this article provides for the imposition of various fines on officials (from 40 to 50 minimum wages) and legal entities (from 1000 to 2000 minimum wages) with confiscation of products.

Responsibility is subject to officials whose duties include organizing and monitoring compliance with the relevant requirements for products.
The question of subjects held liable under Art. 6.14 of the Code of Administrative Offenses of the Russian Federation. Arbitration courts in a number of districts have held that this article provides for liability industrial manufacturer or a supplier of substandard alcoholic beverages, but not a retailer. The federal arbitration courts of other districts considered such a conclusion to be inconsistent with the legislation of the Russian Federation. This issue was resolved in the process of law enforcement.
As a result of an inspection of a store owned by an entrepreneur, the Inspectorate of the Federal Tax Service of Russia established the fact of the sale and storage of alcoholic products - Yantarny Sherry wine with the presence of foreign inclusions in the form of a suspension of crystalline mass, about which an act was drawn up. On the basis of the withdrawal protocol, the indicated products were withdrawn and, in accordance with the decision on the appointment of a sanitary and hygienic examination, were sent to the state institution "Center for State Sanitary and Epidemiological Surveillance" for research. An administrative offense case was initiated against the entrepreneur and an administrative investigation was appointed.
According to the expert opinion, the content of foreign inclusions unacceptable for this product was found in the investigated alcoholic products, which is a violation of clause 2.2.1 of GOST 7208-93; such products are not subject to sale in the retail network.

Upon completion of the administrative investigation, the inspectorate drew up a protocol on an administrative offense under Art. 6.14 of the Code of Administrative Offenses of the Russian Federation, the materials of the administrative case were sent to the arbitration court.

The decision of the Court of First Instance dated 28.02.2005. (Arbitration Court of the Krasnodar Territory case No. A32-4984 / 05-23 / 132-1AP) the proceedings were terminated on the basis of paragraph 1 of part 1 of Art. 150 APC RF. Terminating the proceedings, the court held that Art. 6.14 of the Code of Administrative Offenses of the Russian Federation provides for the liability of an industrial manufacturer or supplier of alcoholic products that do not meet state standards, and not a retailer, and came to the conclusion that the actions of an entrepreneur contain an administrative offense under Part 3 of Art. 14.16 of the Code of Administrative Offenses of the Russian Federation, namely the violation of other rules for the retail sale of alcoholic and alcohol-containing products. By virtue of Art. 23.1 of the Code of Administrative Offenses of the Russian Federation of the case on bringing to administrative responsibility, under Part 3 of Art. 14.16 of the Code of Administrative Offenses of the Russian Federation, are not under the jurisdiction of the arbitration court.
The decisions of the Court of Appeal dated 27.04.2005. case No. А32-4984/05-23/132-1AP and the cassation instance (decree of the Federal Antimonopoly Service of the North Caucasian District dated June 27, 2005 on this case), the ruling of the court of first instance was left unchanged.

By Resolution No. 9451/05 of December 20, 2005, the Presidium of the Supreme Arbitration Court of the Russian Federation canceled the judicial acts, and the case was sent for a new trial to the first instance of the arbitration court. The Presidium of the Supreme Arbitration Court of the Russian Federation, canceling the judicial acts, referred to the following.

Responsibility for the production or circulation of ethyl alcohol, alcoholic or alcohol-containing products that do not meet the requirements of state standards, sanitary rules and hygiene standards is provided for by Art. 6.14 of the Code of Administrative Offenses of the Russian Federation.

In Art. 2 of the Federal Law of November 22, 1995 No. 171-FZ “On state regulation production and turnover of ethyl alcohol, alcoholic and alcohol-containing products" (hereinafter - Law No. 171-FZ) defines the concept of "turnover of ethyl alcohol, alcoholic or alcohol-containing products", including purchase (including import), supply (including export) , storage and retail.

At the time of the inspection, alcoholic products that did not meet state standards were stored and sold at retail in the store, which confirms the fact that they were in circulation. The turnover of such alcoholic and alcohol-containing products, based on the meaning of Art. 25 of Law No. 171-FZ is illegal.

The courts have incorrectly concluded that Art. 6.14 of the Code of Administrative Offenses of the Russian Federation does not provide for the liability of a retailer of alcoholic products that do not meet state standards.

Responsibility for offenses in three different, but closely related areas of activity: violation of the mandatory requirements of state standards, violation of the rules for mandatory product certification, violation of the requirements of regulatory documents to ensure unity - is provided for by Art. 19.19 Administrative Code of the Russian Federation.

In part 1 of Art. 19.19 establishes responsibility for two separate offenses: violation of the mandatory requirements of state standards in the implementation (supply, sale), use (operation), storage, transportation or disposal of products and evasion of the presentation of products, documents or information necessary for the implementation state control and supervision.

The scope of state control in this article is not defined. However, the establishment in this article of responsibility for violating the mandatory requirements of state standards allows us to talk about state control in this and only this area.

The question arises of administrative responsibility for the same actions in the exercise of state control over compliance with the mandatory requirements of sanitary, veterinary rules and other regulations.

Thus, P LLC applied to the Arbitration Court of the Orenburg Region with an application for recognition illegal actions officials of the state institution "Orenburg City Veterinary Administration".

When resolving the dispute, the Arbitration Court established the following. On August 14, 2004, an unknown person was selling mushrooms in the adjacent territory of the market, located along the road, with obvious signs of poor quality (foreign putrid smell, mucus on the surface of the mushrooms, damaged packaging). At the request of the employees of the city veterinary department to present documents confirming the quality and safety of the mushrooms sold, as well as documents confirming the status of the product owner, the seller refused and left the outlet.

Officials of the city veterinary administration this product was withdrawn in order to prevent the further sale of mushrooms, since eating them could lead to food poisoning among the population. The State Veterinary Inspector drew up an act on the removal from sale and use of low-quality and dangerous raw materials and food products (champignon mushrooms and oyster mushrooms). The State Veterinary Inspector drew up an act “On the removal from sale and use of low-quality and dangerous raw materials and food products” - champignon mushrooms and oyster mushrooms.
According to the applicant, the officials of the state institution "Orenburg City Veterinary Administration" were not authorized to carry out the check.
The powers in the field of veterinary medicine are established by the Law of the Russian Federation dated May 14, 1993 No. 4979-I “On Veterinary Medicine”, Decree of the Government of the Russian Federation dated September 29, 1997 No. 1263 “On Approval of the Regulations on the Examination of Low-Quality and Dangerous Food Raw Materials and Food Products, Their Use or Destruction” , Order of the Department of Veterinary Medicine of the Ministry of Agriculture and Food of Russia dated December 25, 1997 No. 36 “On the examination of low-quality products of animal origin and the procedure for their use or destruction”, according to which the state veterinary supervision authorities carry out an examination, determine the procedure for the use or destruction of low-quality and dangerous food raw materials and food products animal and plant origin, control the presence and correctness of registration of veterinary accompanying documents, conduct an external inspection of a batch of products in order to establish its compliance with the accompanying documents, determine the presence of imprints of brands, markings, the state of packaging vki.

According to Art. 13 of the Federal Law of January 2, 2000 No. 29-FZ “On the Quality and Safety of Food Products” state supervision and control in the field of ensuring the quality and safety of food products is assigned to the bodies of the State Sanitary and Epidemiological Service of the Russian Federation, the bodies of the State Veterinary Service of the Russian Federation, the bodies of the State Grain Inspectorate of the Russian Federation, the bodies of the State Inspectorate for Trade, the Quality of Goods and Services and the Protection of Consumer Rights of the Russian Federation, as well as on bodies exercising state control in the field of standardization and certification.

Thus, the applicant's argument that the officials of the State Institution "Orenburg City Veterinary Administration" are not empowered to carry out control measures in relation to industrial products of plant origin contradicts the current legislation.

By virtue of Art. 15 of the Federal Law, food products intended for sale must satisfy the physiological needs of a person in the necessary substances and energy, meet the requirements usually imposed on food products in terms of organoleptic and physico-chemical indicators, and comply with the requirements established by regulatory documents for the permissible content of chemical (including radioactive), biological substances and their compounds, microorganisms and other biological organisms that pose a threat to the health of present and future generations.

The applicant’s assertion that the officials of the administrative body did not present documents certifying their authority, and therefore the seller did not lawfully comply with the demand of the officials to present documents confirming the safety and quality of the products (mushrooms) sold, documents for the point of sale and their own documents, is unfounded , since the Law of the Russian Federation of 07.02.92 No. 2300-I "On Protection of Consumer Rights" establishes the rights of consumers to purchase goods (works, services) of good quality and safe for life and health, to receive information about goods (works, services) and about their manufacturers, as well as state and public protection of their interests. According to Art. Article 10 of this Law prohibits the sale of goods without safety certificates.

By virtue of paragraph 1 of Art. 5 of the Federal Law "On the quality and safety of food products" individual entrepreneurs and legal entities engaged in the manufacture and circulation of food products in the retail food products, are obliged to provide buyers or consumers, as well as state supervision and control authorities with complete and reliable information about the quality and safety of food products, compliance with the requirements of regulatory documents in the manufacture and circulation of food products. These certificates must be located at the point of sale and presented upon request to both inspection bodies and buyers.

The applicant's argument that, based on the results of the audit, the company was not held administratively liable, was not taken into account by the court, since at the time of the audit, the owner outlet and products sold to the regulatory authority was not known. This fact in itself cannot serve as a basis for recognizing illegal actions of officials of an administrative body and does not violate legal rights and interests of the applicant.

Considering the above circumstances, the court refused to meet the requirements of OOO «P». By a decision of the court of appeal, the decision of the court of first instance was upheld (case No. A47-15672/2004 AK-22).

Part 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation provides for liability for violation of the rules of mandatory certification by committing various actions (inaction) that form independent offenses.

The named norm is subject to application in all cases, except for those provided for in the articles specified in its text: 13.6 (use of non-certified means of communication or provision of non-certified communication services), parts 2 and 4 of Art. 13.12 (violation of information protection rules), Part 2 of Art. 14.4 (sale of goods, performance of work, provision of services to the public without a certificate of conformity (declaration of conformity)), Part 2 of Art. 14.16 (delivery or retail alcohol and alcohol-containing products without a certificate of conformity), Art. 20.4 (parts 4 and 5, respectively, provide for the issuance of a certificate of conformity for products without a certificate fire safety, if the latter is mandatory, and the sale of products or the provision of services subject to mandatory certification in the field of fire safety, without a certificate of conformity), art. 20.14 (violation of the rules for certification of weapons and ammunition).

Let us give examples from judicial practice regarding the application of Art. 19.19 Administrative Code of the Russian Federation.

Central Interregional Territorial Administration of the Federal Agency for technical regulation and metrology, represented by the department of state supervision, filed an application with the arbitration court to bring LLC “E” to administrative responsibility under Part 2 of Art. 19.19 Administrative Code of the Russian Federation.

The Company sold the UZO-01 residual current device, Kosmos U-5m-3g, 46-004, U6-766 network extension cords without certificates of conformity, without specifying information about certification in the accompanying technical documentation. TS-3 Wellcont network tees were sold without a conformity mark and without indication of certification information in the accompanying technical documentation.

These circumstances were established as a result of examination of the evidence submitted by the parties in support of their claims and objections, including certificates of conformity No. ROSS C No. AYA20. BO6287, No. ROSS C No. AYA46. B66127, No. ROSS RU. ME 04. B00995, No. ROSS RU. ME 04. B06083, No. ROSS RU AYA 46. B18153, as well as the results of the check recorded in the act of 03/28/2005 No. 80, sampling acts of 03/14/2005, technical inspection report of 03/14/2005.

The company referred to the existence of valid certificates of conformity for UZO-01 residual current devices, network extension cords Cosmos U-5m-3g, K6-004, U6-766, however, the court did not accept this argument, since the belonging of these certificates to this particular product was not confirmed .

During the consideration of the case, the court found that the administrative body proved the fact of violation by the company of the requirements of clauses 3.8, 4.6 of the Rules for Certification in Russian Federation, approved by the Decree of the State Standard of Russia dated 10.05.2000 No. 26, paragraph 2 of Art. 28 of the Federal Law "On technical regulation", paragraphs 2 and 3 of Art. 10 of the Law of the Russian Federation "On Protection of Consumer Rights".

The identified violations by the legal representative of the company were not denied, their existence was motivated by reference to the failure to fulfill contractual obligations by the supplier.
In view of the foregoing, the court satisfied the requirements of the administrative body and brought the company to administrative responsibility, under Part 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation, based on the fact that this norm establishes administrative liability for violation of the rules of mandatory certification, with the exception of cases provided for in Art. 13.6, parts 2 and 4 of Art. 13.12, part 2 of Art. 14.4, part 2 of Art. 14.16, art. 20.4, 20.14 of this Code, i.e. for the sale of certified products that do not meet the requirements of regulatory documents for which it is certified, or the sale of certified products without a certificate of conformity (declaration of conformity), or without a mark of conformity, or without indication in the accompanying technical documentation information about certification or regulatory documents that the specified products must comply with, or failure to communicate this information to the consumer (buyer, customer), as well as the presentation of unreliable product test results or the unreasonable issuance of a certificate of conformity (declaration of conformity) for products subject to mandatory certification. By the decisions of the appellate and cassation instances, the decision of the court of first instance was left unchanged (decision of April 27, 2005 of the Arbitration Court of the City of Moscow; decision of June 17, 2005 N 09AP-5947 / 05-AK of the Ninth Arbitration Court of Appeal in case N A40-16434 / 05 -96-132; Decree of the Federal Antimonopoly Service of the Moscow District dated September 29, 2005 No. KA-A40 / 9144-05).

Federal government agency The Center for Standardization, Metrology and Certification verified compliance with the mandatory requirements of state standards in the implementation by entrepreneur G. of activities for the sale of household enameled utensils from a wholesale warehouse.

Based on the results of the audit, an act of November 14, 2002 and a protocol on an administrative offense were drawn up on bringing businessman G. to administrative responsibility under Parts 1, 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation for violation of the mandatory requirements of state standards - clause 5.4.3 of GOST 24788-2001 (sale of household enameled utensils in the absence of a conformity mark on each unit of production). In addition, a violation of the requirements of clause 4.6 of GOST 51121-97 was revealed (lack of information for the consumer about the rules and conditions for safe and effective use products). The materials of the administrative case were sent to the arbitration court.

By the decision of the court of first instance, the requirements of the administrative body were satisfied, the entrepreneur was brought to administrative responsibility under Part 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation, believing that the entrepreneur has not fulfilled the obligation to conduct production control for the quality and safety of products sold, compliance with the requirements of regulatory and technical documents for the conditions for the sale of such products. The violation resulted in the sale of products in the absence of a conformity mark, i.e., there is no marking directly for each unit of production, and the sale of dishes without a certificate issued by an authorized body. By decision of the cassation instance, the decision of the court of first instance was canceled on the following grounds.

Decree of the State Standard of Russia dated 25.07.96 No. 14 “On the Rules for the Application of the Mark of Conformity for Mandatory Certification of Products” (as amended on 05.07.2002) provides that the use of the mark of conformity for its intended purpose is considered to be the labeling of the product itself and (or) its packaging ( containers), accompanying technical documentation received by the consumer during the sale.
Since it is clear from the case materials that the marking was put on the packaging of products, and considering that paragraph 4.3 of the Decree of the State Standard of Russia dated July 25, 1996 No. 14 (dated July 5, 2002) does not contain a direct indication of the labeling of each unit of production, the conclusion about the absence of a matching sign is erroneous.

At the time of checking and drawing up the protocol, the entrepreneur had a certificate of conformity. The certificate was issued to the entrepreneur by the company "Emal" on 07/12/2002 with a validity period of up to 07/01/2005 for compliance with enameled utensils to GOST 24788-81.
In connection with the introduction of the new GOST No. 24788-2001 from 01.09.2002, the manufacturer LLC "Emal" submitted an application to the Magnitogorsk Center for Standardization and Metrology for certification of manufactured products for compliance with the new GOST.

According to paragraph 3.5.3 of the Decree of the State Standard of Russia of September 21, 1994 No. 15 “On Approval of the Procedure for Certifying Products in the Russian Federation” (as amended on July 11, 2002) for products sold by the manufacturer during the validity period of the certificate for mass-produced products, the certificate is valid upon its delivery, sale during the expiration date (service life) established in accordance with the current legislation of the Russian Federation for making claims regarding product defects.
Certificate of conformity of cookware to GOST 24788-2001 valid until 12/25/2005 was obtained by OOO "Emal" on 12/25/2002. Thus, until 12/25/2002 the certificate dated 07/12/2002 was valid and the dishes could be sold. (decision dated 14.01.2003 and decision of the appellate instance dated 17.03.2003 of the Arbitration Court of the Sverdlovsk Region in case N A60-29071 / 02-C5; decision of the Federal Antimonopoly Service of the Urals District dated 06.26.2003 No. F09-1820 / 03-AK).

The administrative body checked compliance with the rules for certification of goods sold in a retail outlet owned by entrepreneur R.

The audit found that the sale of goods - cell phones was produced in violation of the rules of mandatory certification: there are no certificates of conformity for the "communication" system on 12 new cell phones: "Nokia 6020", "Sharp GX-L15", "Nokia 6230", "Samsung X640", "Samsung SGH-D500", " Samsung X 460", "SoniErricson K700i", "Samsung SGH-E850", "SoniErricson K500i", "Philips 568", "Motorola V620", "LG 1610"; there is no sign of conformity of the "communication" certification system on 7 used cell phones: "Siemens M35", "Siemens M55", "Siemens CT55", "Panasonic EB-GD92", "Samsung G200", "SoniErricson T630", "Motorola" V150".

According to the results of the check against entrepreneur R., a protocol on an administrative offense was drawn up, on the basis of the protocol for the seizure of things and documents, 19 cell phones were seized.

The administrative body applied to the arbitration court with an application to bring entrepreneur P to administrative responsibility, provided for in Part 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation, with the confiscation of seized cell phones.

The businessman stated that the sale of telephones by him under commission agreements concluded with Russian citizens, foreign citizens and stateless persons, by virtue of paragraphs 2, 8, 9 of the Rules for commission trade in non-food products, approved by Decree of the Government of the Russian Federation dated 06.06.98 No. 569, exempts him from the obligation to check the circumstances of the acquisition of phones handed over to the commission.

In accordance with Part 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation violation of the rules of mandatory certification, i.e. the sale of certified products that do not meet the requirements of regulatory documents for which they are certified, or the sale of certified products without a certificate of conformity (declaration of conformity) or without a mark of conformity, or without indication in the accompanying technical documentation information about certification or regulatory documents that the specified products must comply with, or failure to provide this information to the consumer, entails a fine on officials in the amount of 10 to 20 minimum wages with confiscation of the subjects of an administrative offense.

The certification procedure is determined by the Federal Law of December 27, 2002 No. 184-FZ “On Technical Regulation”. According to Art. 2 of this Law, product certification is a form carried out by the certification body to confirm the compliance of objects with the requirements of technical regulations, the provisions of standards or the terms of contracts. Through certification, a legal entity or an individual entrepreneur accredited in the prescribed manner for its implementation certifies in writing that the products comply with technical regulations, provisions of standards or terms of contracts.

Article 18 of the mentioned Law determines that certification (conformity assessment) is carried out in order to: certify the conformity of products, production processes, operation, storage, transportation, sale and disposal of works, services or other objects with technical regulations, standards, terms of contracts; assistance to purchasers in the competent choice of products, works, services; increasing the competitiveness of products, works, services in the Russian and international markets and creating conditions for ensuring the free movement of goods across the territory of the Russian Federation, as well as for the implementation of international economic, scientific and technical cooperation and international trade.

As follows from Art. 46 of Law No. 184-FZ, before the entry into force of the relevant technical regulations, the requirements for the process of selling products established by the regulatory legal acts of the Russian Federation and the regulatory documents of the federal executive authorities are subject to mandatory execution.

In addition, Art. 41 of the Federal Law of 07.07.2003 No. 126-FZ “On Communications” stipulates that confirmation of compliance with the established requirements of the communication means used in the communication network common use, is mandatory. Confirmation of compliance of communication facilities with technical regulations is carried out through their mandatory certification. Communication facilities subject to mandatory certification are provided for certification by the manufacturer or seller. The list of communications subject to mandatory certification includes, among other things, radio-electronic communications.

In accordance with the Special Conditions for the Acquisition of Radio Electronic Equipment and High-Frequency Devices, approved by Decree of the Government of the Russian Federation of July 17, 1996 No. 832, subscriber wearable (portable) radio stations of cellular radio networks of federal and regional standards are classified as radio electronic equipment.
The rules for certification in the Russian Federation, approved by the Decree of the State Standard of Russia dated May 10, 2000 No. 26, provide that manufacturers (sellers, performers) of products, when conducting mandatory certification, among other things, mark certified products with a conformity mark, indicate information about the certificate in the accompanying technical documentation (clause 3.8). A certificate is issued for products for which, according to the results of certification, compliance with the requirements of regulatory documents is confirmed. The conformity mark is applied to the products (tare, packaging), accompanying technical documentation received by the consumer during the sale (clause 4.6).

In the order of paragraph 2 of Art. 25 of the Federal Law "On Technical Regulation", the conformity of products with the requirements of technical regulations is confirmed by a certificate of conformity issued to the applicant by the certification body. According to paragraph 2 of Art. 28 of this Law, the applicant is obliged to present to the bodies of state control (supervision) over compliance with the requirements of technical regulations, as well as to interested parties, documents confirming the conformity of products with the requirements of technical regulations (declaration of conformity, certificate of conformity or copies thereof).
Thus, the implementation by an entrepreneur of the sale of cell phones without marks of conformity on the phones themselves and without certificates of conformity forms an administrative offense, responsibility for which is provided for in Part 2 of Art. 19.19 Administrative Code of the Russian Federation.

The entrepreneur's reference to the Rules for Commission Trade in Non-Food Products was not taken into account by the court, since liability under Part 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation comes for the sale of products without a mark of conformity and certificates of conformity.

Considering the above, the court satisfied the requirements of the administrative body: businessman R. was brought to administrative responsibility on the basis of Part 2 of Art. 19.19 of the Code of Administrative Offenses of the Russian Federation in the form of a fine of 1000 rubles. with confiscation of subjects of an administrative offense - confiscated cell phones. By the decisions of the appellate and cassation instances, the decision of the court was upheld (the decision of 06/27/2005 and the decision of the appellate instance of 09/07/2005 of the Arbitration Court of the Pskov Region in case N A52-2720/2005/2; case No. А52-2720/2005/2).

The Federal State Institution "Volgograd Center for Standardization, Metrology and Certification" conducted an inspection of the organization, these inspections were recorded in the inspection protocol. During the check, it was found that the marking on the label does not contain sufficient information about the sausages "Ural" and sausages "Taiga": the content of phosphate is not indicated. Sausages "Taiga" also do not meet the conditions of TU9213-043-13160604-99 in terms of the presence of large inclusions of the bone residue.
The label for smoked-boiled chicken legs does not contain the necessary and sufficient information about the product: the product's expiration date is not indicated, the product does not contain salt, sodium nitrite, phosphate.

The label for homemade bacon contains false information about the energy value of the product: it is indicated that 100 g of the product contains 18% protein (instead of 4%), fat - 5% (instead of 96%); there is no information about the product: salt, spices, as well as the expiration date of the product are not indicated.

As a result of an external examination, physicochemical and microbiological analyzes, these checks were confirmed. In sausages "Ural" bacteria of the group of Escherichia coli were found in 1 g of the product. The product does not correspond to the reported information on the energy value of the product.

The protocol on an administrative offense found the organization to have violated Art. 3 of the Federal Law "On the quality and safety of food products"; mandatory requirements of GOST R51074-97, p. 3 item 4.2; Art. 13 of the Law of the Russian Federation "On certification of products and services". Responsibility for such violations is provided for in Parts 1 and 2 of Art. 19.19 Administrative Code of the Russian Federation.
The administrative body filed an application to bring the organization to administrative responsibility to the arbitration court. The court satisfied the requirements of the administrative body and brought the organization to administrative responsibility. By decisions of the appellate and cassation instances, the decision of the court was left unchanged (decision of September 9, 2002; Resolution of the appellate instance of October 17, 2002 in case N A 12-7938 / 02-C43 of the Arbitration Court of the Volgograd Region; decision of the Federal Antimonopoly Service of the Volga District of January 14 .2003 in case No. A12-7938/02-C43).
The foregoing cannot testify to the effectiveness of the above measures of administrative responsibility for violation of the mandatory requirements of state standards in the absence of statistical data. However, the low level of quality of many types of products is now a well-known fact. Therefore, the improvement of legislation in the area under consideration, bringing it into line with the new market stage in the development of the economy remains relevant.

Valentina Mikhailovna SHTYRNIK , Assistant Judge of the Arbitration Court of the Orenburg Region

1Introduction……………………………………………………………………2
2Responsibility for violation of the mandatory requirements of the standards………………………………………………………………………....3
3The state and development of the legislative and regulatory framework certification of Russia……………..………………………………………………7
4Metrological assurance of product testing………..……13
5 References……………………..…………………………….17

Introduction
"Standardization - the establishment and application of rules with the aim of streamlining activities in a certain area for the benefit and with the participation of all interested parties, and, in particular, to achieve universal optimal economy while observing the conditions of operation (use) and safety requirements. Standardization is based on the combined achievements of science , technology and practical experience and determines the basis of not only present, but also future development and must be carried out inseparably with progress.
A somewhat simplified definition is more often used: “Standardization is an activity aimed at developing and establishing requirements, norms, rules, characteristics, both mandatory and recommended, ensuring the consumer’s right to purchase goods of good quality at an affordable price, as well as the right to safety and comfort of work.
Standardization is one of essential elements modern quality management mechanism. The impact of standardization on improving product quality is carried out through the comprehensive development of standards for raw materials, materials, semi-finished products, components, equipment, tooling and finished products, as well as through the establishment in the standards of technological requirements and quality indicators, common test methods and controls. Standardization is an effective means of ensuring the quality, compatibility, interchangeability of products and their components, as well as their unification, typification, safety standards and environmental requirements, unity of characteristics and properties of products, works, processes and services.
Responsibility for violation of the mandatory requirements of the standards
Responsibility for violation of its provisions is borne by both legal entities and individuals, government bodies. Liability may be criminal, civil or administrative. All violations are detected by the state control and supervision service for compliance with the requirements of state standards.
Officials or civilians, registered as individual entrepreneurs, who violated the mandatory requirements of state standards in the sale, operation, transportation and storage of products are subject to a fine in the amount of five to one hundred minimum wages. The same type of punishment is borne by legal and individuals for evading the presentation of products, certain information about it, and the necessary documentation to state supervision bodies.
Criminal liability for gross violation of the requirements of standards for industrial products is not provided, and administrative liability for non-compliance with the requirements during the sale, supply, use, transportation and storage. Civil liability for violation of quality requirements may be determined on the basis of the provisions of civil law.
For violation of the requirements of technical regulations, the manufacturer (executor, seller, person performing the functions of a foreign manufacturer) is liable in accordance with the legislation of the Russian Federation.
If, as a result of non-compliance of products with the requirements of technical regulations, violations of the requirements of technical regulations in the implementation of the processes of production, operation, storage, transportation, sale and disposal, harm has been caused to the life or health of citizens, property of individuals or legal entities, state or municipal property, the environment, life or health of animals and plants, or there is a threat of causing such harm, the manufacturer (performer, seller, person performing the functions of a foreign manufacturer) is obliged to compensate for the harm caused and take measures to prevent harm to other persons, their property, the environment in accordance with the legislation of the Russian Federation. The obligation to compensate for harm cannot be limited by an agreement or a statement by one of the parties. Agreements or disclaimers are void.
The manufacturer (performer, seller, person performing the functions of a foreign manufacturer), who became aware of the non-compliance of the products released into circulation with the requirements of technical regulations, is obliged to report this to the state control (supervision) body in accordance with its competence within ten days from the date of receipt the specified information. The seller (executor, person performing the functions of a foreign manufacturer) who has received the specified information is obliged to bring it to the manufacturer within ten days. A person who is not a manufacturer (executor, seller, person performing the functions of a foreign manufacturer) and who has become aware of the non-compliance of the products put into circulation with the requirements of technical regulations, has the right to send information about the non-compliance of products with the requirements of technical regulations to the state ..... ...

Bibliography
1 Basakov M.I. Certification of products and services with the basics of standardization and metrology. - Rostov-on-Don, 2002.
2 Lifits I.M. Fundamentals of standardization, metrology, certification. - M.: Yurayt, 2001.
3 Okrepilov V.V. Quality control. - M.: Economics, 1998.
4 Standardization and product quality management. / Ed. Shvandara V.A. - M.: UNITI-DANA, 1999.

Is the established order of management.

2. The objective side of the offense provided for in Part 1 of Art. 19.19, consists in the fact that the perpetrator violates the mandatory requirements (i.e. ignores them, acts contrary to them or partially complies with them) of state standards (approved in accordance with the Law on the TR and other regulatory legal acts adopted by the Government of the Russian Federation, other federal state bodies authorities in the development of the provisions of this Law) in the course of implementation (i.e. supply, exchange, contracting, sale, etc.), use (operation), storage (including in warehouses, in their own warehouses), transportation (by road, by rail, river vessel, etc.) or disposal (for example, by crushing, processing, crushing). On the other hand, the objective side of this administrative offense does not cover such actions (inaction) as:

1) production or circulation of ethyl alcohol, alcoholic or alcohol-containing products that do not meet the requirements of state standards (see comments to Article 6.14);

2) operation of a vehicle with standards exceeding state standards (see comments to Article 8.23);

3) violation of the requirements of GOSTs in the field of construction (see comments to Article 9.4);

4) driving a vehicle with non-standard registration plates or those installed in violation of the requirements of GOSTs (see comments to Article 12.2);

5) violation of the rules for the operation of radio electronic equipment and (or) high-frequency devices, the rules of radio exchange in case of non-compliance with state standards (see comments to Article 13.4);

6) manufacture, sale or operation technical means that do not meet the standards (see commentary to article 13.8);

7) sale of goods, performance of work, provision of services to the population that do not meet the requirements of GOSTs (see comments to article 14.4);

8) violation of fire safety requirements established by the standards (see comments to Article 20.4).

The objective side of the analyzed administrative offense is also evident when the perpetrator evades (i.e. postpones the deadlines, violates them and again promises to submit) from the presentation of products, documents and information necessary for state control and supervision (over the compliance of products with GOSTs).

This act is considered completed from the moment of its commission. It is committed both in the form of actions and inaction (for example, when evading the provision of products for control). See also the letter of Rospotrebnadzor dated 03.12.08 N 01/14303-8-32 "On the application of technical regulations".

3. The objective side of what is provided for in Part 2 of Art. 19.19 of an administrative offense is that the perpetrator violates the rules of mandatory certification by:

1) sale (for example, supply, exchange) of certified products that do not meet the requirements of regulatory documents (issued in accordance with the Law on the TR, regulatory legal acts of federal executive authorities adopted in its development), for compliance with which the products have passed the certification procedure;

2) sales of certified products without a certificate of conformity (it must be issued on a standard form, contain all the necessary details, signatures, seals, etc.), without a conformity mark (applied to the product itself, products, containers and packaging), without indications in the accompanying documents for products (in the passport, technical passport, instructions, in the supply agreement, etc.) approved by authorized state bodies), which the products sold must comply with;

3) failure to provide (for example, by distributing special booklets, texts, additional documents to technical documentation, all kinds of declarations, conclusions, summary acts, etc.) information about certification to the consumer (buyer, customer) of the product;

4) submission of unreliable (i.e. distorted, incomplete, false, etc.) product test results (including information about supposedly conducted tests);

5) issuance of a certificate of conformity for products that have not passed certification (including if they were not submitted for certification). For example, the perpetrator issues a declaration of conformity, although the product was not even submitted for certification.

On the other hand, the objective side of this administrative offense does not cover the actions (inaction) of the perpetrator, consisting in the fact that the latter:

a) used non-certified means of communication or provided non-certified communication services (see comments to Article 13.6);

b) used uncertified Information Systems, databases and data banks, as well as non-certified information security tools (see comments to article 13.12);

c) sold goods, performed work, provided services to the public without a declaration of conformity (see comments to Article 14.4);

d) sold alcoholic and alcohol-containing products without a certificate of conformity (see comments to Article 14.16);

e) violated fire safety requirements (see comments to Article 20.4);

f) violated the rules for certification of weapons and cartridges for them (see comments to Article 20.14).

If the perpetrator has committed the actions (inaction) mentioned above, then additional qualifications under Art. 19.19 the administrative offense committed by him does not require (i.e., the administrative offense provided for in Part 2 of Article 19.19 is general character in relation to the administrative offenses listed above). See also Order of the Ministry of Industry and Energy No. 53 dated March 22, 2006 (as amended on April 21, 2009) "On approval of the form of the certificate of conformity of products to the requirements of technical regulations."

This act is considered completed from the moment it was committed: it can be committed both in the form of actions and inaction (for example, failure to present a certificate of conformity, a declaration of conformity).

4. The objective side of the administrative offense provided for in Part 3 of Art. 19.19, consists in the fact that the perpetrator violates the rules:

1) verification of measuring instruments (scales, devices that determine the density, composition, recipe, etc. of products);

2) requirements of certified (in authorized bodies, institutions, organizations) measurement methods. They are usually brought to the attention of interested parties by standardization and metrology bodies;

3) requirements for the state (technical, updated, etc.) of standards related to products;

4) requirements of established units of quantities or metrological rules and norms in trade. These units and rules are approved by the bodies of standardization and metrology in accordance with the Law on TR Certification, regulatory legal acts of the federal executive authorities.

The objective side of this offense covers both release (i.e. manufacturing, production), and sale (including supply, exchange), and rental of products, and the use of measuring instruments, the types of which are not approved, or the use of unverified measuring instruments ( including those made in a guilty handicraft way, borrowed from another person).

This act is considered completed from the moment when any of the mentioned actions is committed.

3. Subjects of administrative offenses are:

1) officials (for example, the director of a store, trade and wholesale base), incl. individual entrepreneurs (see comments to articles 2.4, 2.5);

2) legal entities (see comments to Articles 2.1, 2.10).

The Supreme Court clarified that, based on the subject composition and essence of administrative offenses regulated by Art. 19.19, these rules should apply to legal relations arising in the course of production of products, their composition and certification, and apply to product manufacturers. The concept of products is considered as the result of production activities. If at the time of the sale of the goods at the place of its sale there is no certificate of conformity (declaration of conformity), the guilty person may be held liable on the basis of Part 2 of Art. 14.4 (clause 13 of the Review dated 01.08.07).

4. The subjective side of administrative offenses is characterized either by intent or negligence (see.

The liability of manufacturers, certification bodies, testing laboratories (centers) and their officials for violation of mandatory requirements for products (goods) is established by the Civil Code of the Russian Federation, the Code of the Russian Federation on administrative offenses, the Criminal Code of the Russian Federation and other legislative acts. The Federal Law "On Technical Regulation", enacted on July 1, 2003, provided for a number of offenses for which the said bodies and officials should be held liable in accordance with the said legislative acts.
So, in Art. 36 of the Federal Law "On Technical Regulation" (hereinafter - the Federal Law) establishes the responsibility of the manufacturer (executor, seller, person performing the functions of a foreign manufacturer) for violation and, in particular, for the following offenses: "if, as a result of non-compliance of products with the requirements of technical regulations, violations of the requirements of technical regulations during production, operation, storage, transportation, sale and disposal, harm has been caused to the life or health of citizens, property of individuals or legal entities, state or municipal property, the environment, the life or health of animals and plants, the manufacturer (performer, seller, person performing the functions of a foreign manufacturer) is obliged to compensate for the harm caused in accordance with the legislation of the Russian Federation.
The Federal Law also establishes offenses for the commission of which, in accordance with the legislation of the Russian Federation and the contract, liability of certification bodies and their officials is provided for in case of non-compliance with the rules for performing certification work, if this entailed the release into circulation of products that do not comply requirements of technical regulations, and accredited testing laboratories (centers), experts for the unreliability or bias of the presented results of research (tests) and measurements (Art. 41, 42).
Thus, the responsibility of manufacturers, certification bodies, testing laboratories (centers) and their officials for offenses under Art. 36, 41, 42, Federal law associates with violations requirements of technical regulations and the onset of these violations of the consequences. In addition, the Federal Law provides for new offenses for which the current legislation does not contain specific legal measures.
These circumstances are an obstacle to the application of the Federal Law in full, since technical regulations have not yet been adopted (according to paragraph 7 of Article 46 they must be adopted within 7 years from the date of entry into force of the Federal Law) and the necessary changes and additions have not been made to the relevant legislative acts. For example, the Code of Administrative Offenses of the Russian Federation provides for administrative liability for a violation, and not for violations requirements of technical regulations as stated in federal law.
New provisions introduced into the Federal Law, for example, on compensation by the manufacturer for damage caused life or health of animals and plants due to violations of the requirements of technical regulations (Article 36), on the responsibility of certification bodies and their officials for violation of the rules for certification, if they entailed the release into circulation of products that do not meet the requirements of technical regulations (Article 41), or liability experts(Article 42) have not yet been included in the relevant legislative acts providing for specific measures of legal influence, and, therefore, the Federal Law does not work in this part.
Until the necessary changes and additions are made to the legislative acts that provide for punishment, and the adoption of technical regulations in the transitional period established by Art. 46 of the Federal Law, manufacturers, mandatory certification bodies, testing laboratories(centers) and their officials should be held accountable for violations mandatory requirements of state standards in accordance with the current civil, administrative and criminal legislation of the Russian Federation.

Civil Liability

Administrative responsibility

Criminal liability