Implementation of illegal entrepreneurial activities of the Criminal Code of the Russian Federation. Illegal entrepreneurship - judicial practice

1. Implementation of entrepreneurial activities without registration or without a license in cases where such a license is obligatory if this act has caused major damage to citizens, organizations or the state or is associated with the extraction of income in large amounts, except in cases provided for in Article 171.3 of this Code, -

it is punished with a fine in the amount of up to three hundred thousand rubles or in the amount of wages or other income of convicts for the period up to two years, or mandatory work for up to four hundred eighty hours, or arrest for up to six months.

2. The same act:

a) committed by an organized group;

b) conjugate with extracting income in particularly large size;

c) has lost strength -

shall be punished with a fine in the amount of from one to five hundred thousand rubles or in the amount of wages or other income convicteder from one year to three years, or forced work for up to five years, or imprisonment for up to five years with a fine in the amount of Up to eighty thousand rubles or in the amount of wages or other income of the convict for the period up to six months either without any.

Note. Lost power.

Comment to Art. 171 of the Criminal Code of the Russian Federation

According to Art. 3 of the Federal Law of 04.05.2011 N 99-FZ "On the licensing of certain types of activities" (as amended by 28.07.2012) licensing authorities are authorized federal executive authorities or their territorial bodies and in the case of transferring the powers of the Russian Federation in the field of licensing State authorities of the subjects of the Russian Federation executive authorities of the subjects of the Russian Federation carrying out licensing.
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SZ RF. 2011. N 19. Art. 2716; RG. 2011. N 160; SZ RF. 2011. N 43. Art. 5971; N 48. Art. 6728; 2012. N 26. Art. 3446; N 31. Art. 4322.

Licensing of certain types of activities is governed by other federal laws. Thus, licensing of educational activities provided for Art. 6 of the Federal Law of December 29, 2012 N 273-FZ "On Education in the Russian Federation" and is carried out by the federal executive body, which performs functions to control and oversight in the field of education (Rosobrnadzor), or the executive authority of the subject of the Russian Federation, carrying out the powers of the Russian Federation in the field of education.
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RG. 2012. Dec 30 Enters into force on September 1, 2013. Until this time, the RF law is valid from 10.07.1992 N 3266-1 "On Education" (as amended by 12.11.2012).

Local authorities may also be local governments, for example, in cases of issuing a license for the right to maintain the retail sale of alcoholic beverages. Article 18 of the Federal Law of 22.11.1995 N 171-FZ "On state regulation of production and turnover of ethyl alcohol and alcoholic beverages" (as amended from 12/30/2012) provides that the licenses for the retail sale of alcohol products are issued by the subjects of the Russian Federation in the manner prescribed by Taking into account the provisions of this federal law, only organizations. The authority to licensing the retail sale of alcoholic beverages can be transmitted by the subject of the Russian Federation to local governments in accordance with Art. 7 of the federal law.
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SZ RF. 1999. N 2. Art. 245; 2001. N 53 (Part 1). Art. 5022; 2002. N 30. Art. 3026, 3033; 2003. N 47. Art. 4586; 2004. N 45. Art. 4377; 2005. N 30 (Part 1). Art. 3113; 2006. N 31 (Part 1). Art. 3433; N 43. Art. 4412; 2007. N 1 (Part 1). Art. eleven; N 17. Art. 1931; N 31. Art. 3994; N 49. Art. 6063; 2008. N 30 (Part 2). Art. 3616; 2009. N 1. Art. 21; N 52 (Part 1). Art. 6450; 2010. N 15. Art. 1737; 2011. N 1. Art. 42; N 27. Art. 3880; RG. 2011. N 159, 161; SZ RF 2012. N 26. Art. 3446; 2012. N 31. Art. 4322; RG. 2012. N 301.

2. The implementation of entrepreneurial activities without registration will take place only in cases where in the Unified State Register of Legal Entities and the Unified State Register of Individual Entrepreneurs there is no record of creating such a legal entity or acquiring the status of an individual entrepreneur or contains a record of the liquidation of a legal entity or Termination of an individual as an individual entrepreneur.

3. If the federal law is allowed to engage in entrepreneurial activities only in the presence of a special permit (license), but the procedure and conditions were not established, and the person began to carry out such activities in the absence of a special permit (license), then the actions of this person associated with the extraction of income in A large or especially large amount or with causing major damage to citizens, organizations or the state should be qualified as an exercise of illegal business without a special permit (license).

4. If federal legislation from the list of activities, the implementation of which is allowed only on the basis of a special permit (license), the corresponding type of activity is expelled, in the actions of the person who has been involved in this type of entrepreneurial activity, there is no composition of the crime provided for by the commented article.

5. Under income in the commented article means revenue from the sale of goods (works, services) for the period of the implementation of illegal entrepreneurial activities without deducting the expenses made by the person related to the implementation of illegal entrepreneurial activities.

6. As a constitutive, but at the same time, alternative income in a large amount of a sign of the objective side of the crime under consideration, the legislator indicated the causing act of major damage. There are cases where such damage is indeed caused and at the same time not a sign of another crime. For example, how damage can be considered non-payment of fees for the registration and receipt of various licenses. However, to qualify for the discussed article, it is necessary that such damage can be regarded as large, i.e. exceed 1 million 500 thousand rubles. (See Note. to Art. 169 of the Criminal Code). Based on paragraph 16 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of 18.11.2004 No. 23, unpaid taxes from the income received from the occupation of illegal entrepreneurial activities can be distinguished.

7. The Subjective Party is characterized by both direct and indirect intent. In the text commented on the article, the indication on the mercenary motive is not, however, the establishment is meant on the basis of the fact that entrepreneurial activities, and illegal, among other things, is necessarily aimed at systematic receipt of profits from the use of property, sales of goods, and the provision of services.

8. The subject of the crime provided for by the commented article may be as a person who has the status of an individual entrepreneur and a person carrying out entrepreneurial activities without state registration as an individual entrepreneur (consequently, the subject in the latter case is common).

When implementing an organization (independently of the form of ownership) of the illegal entrepreneurial activity of responsibility on the commented article, a person who, by virtue of his official position, is constantly, temporarily or for a special authority was directly entrusted with the management of the organization (for example, the head of the executive body of a legal entity or other A person who has the right without a power of attorney to act on behalf of this legal entity), as well as a person who actually performs the duties or functions of the head of the organization. In the latter case, the subject is special.

9. In cases where the person, having the purpose of extracting income, is engaged in illegal activities, the responsibility for which is provided for by other articles of the Criminal Code (for example, the illegal manufacturer of firearms, ammunition, sales of narcotic drugs, psychotropic substances and their analogues), The article does not require a commentible article.

10. For the commission of a crime by the organized group, see comments. to art. 35

11. The size of a particularly large income is defined in notes. to art. 169 of the Criminal Code, it should exceed 6 million rubles.

Navigating on records

Many of us periodically provide some services to your friends (or their familiar): help with repair, make a haircut, order through the Internet some products, sew a dress or repair the car. And do it for a certain remuneration. And if such a business clearly goes beyond the framework of small part-time and begins to bring tangible profits, it can be qualified as illegal entrepreneurship. This activity may be seriously interested in not only the tax, but also the police and other structures.

It is also necessary to know that in order to fulfill certain types of work, it is not enough to register as an IP or open a company - a special permit will also need (license). This applies to medical and cosmetic services, passenger traffic, design work, and so on. To conduct such a business without registration of all appropriate documents - a much more serious offense than just unregistered entrepreneurship.

Letter of the law

Entrepreneurial, in accordance with the Civil Code, is called activities that are carried out in order to systematically produce profits on their risk. Profit may be removed by carrying out work, the sale of goods, leasing property, the provision of paid services. A citizen leading commercial activities must necessarily register as an entrepreneur.

As you can see, the main differences between the private transaction between citizens and entrepreneurship are the systematic activity and profit. Thus, a one-time purchase and sale transaction or once provided by the service cannot be considered illegal entrepreneurial activities. But produced twice or more during the year, they become systematic and fall under the definition of commercial activities.

However, if we are talking about the sale of goods at the cost, for which it was acquired (or less), this will be considered a private business in any case: there is no profit. Such activity cannot be considered entrepreneurial, even if it is committed systematically.

Illegal entrepreneurship in Russia is considered:

1. Commercial activities, which is carried out without registration of individual entrepreneurship or legal entity. This includes activities decorated with violations or indicating the registration documents of false data.
2. Entrepreneurship carried out without a license if required.
3. Gross violations of licensing requirements.
4. Illegal business management can bring serious trouble on the entrepreneur. For this offense, legislation provides for three types of responsibility: tax, administrative and even criminal.

Administrative responsibility

The Code of Administrative Violations for the conduct of illegal commercial activities provides for the following penalties:

1. For unregistered in the prescribed manner (IP or LLC), activities are imposed a fine of 500 to 2000 rubles.
2. For the implementation of those activities that are subject to compulsory licensing, without appropriate permits, penalties may be imposed: individuals - from 1 to 2.5 thousand rubles, for officials of 4-5 thousand rubles, for Yurlitz- 40-50 thousand rubles. In this case, unlicensed products and means of its production can be confiscated.
3. If the license is, but licensing requirements are violated, it is also fraught with penalties: for citizens - in the amount of 1.5-2.5 thousand rubles, for officials - 3-4 thousand rubles, for organizations - from 30 to 40 thousand . rubles.
4. If the licensing conditions are roughly violated, entrepreneurial activities can be suspended for 90 days, a fine in this case is 4-5 thousand rubles for physical and officials, 40-50 thousand rubles for organizations.

Install the fact of illegal entrepreneurship can:

• tax inspection,
• antimonopoly Committee,
• consumer surveillance authorities,
• police,
• prosecutor's Office.

The protocol on offenses may be issued as a result of test activities: inspection of the premises, performing control purchases and so on. A person may serve as a reason for such an inspection that illegal entrepreneurship is conducted or violations are allowed.

Cases of illegal entrepreneurship are considered by the global judge at its place of implementation or at the place of residence of the violator. This case should be considered within a two-month period after the corresponding protocol is drawn up. If this does not happen, the case must be closed. If the protocol is issued with violations, there are contradictions and inaccuracies in it, the violator can avoid punishment: while the protocol is reissued and the errors are fixed to attract a period of time can expire.

Criminal liability

In some cases, the plane entrepreneurship can also lead to criminal liability. This happens if serious damage is made to the state, organizations or individuals as a result of such activities, or when the entrepreneur receives major profits from illegal business. A large size (both damage and profits) is considered to be the amount of 250 thousand rubles, especially large - from 1 million rubles.

In this case, the illegal entrepreneur expects a sentence in accordance with the Criminal Code of the Russian Federation:

1. Cause damage in large amounts punishands with a fine to 300 thousand rubles or in the amount of earnings of the violator for 2 years, 180-240 hours of mandatory work or imprisonment for 4-6 months.
2. Damage to a particularly large amount or the same action committed by a group of persons entail a fine of 100-500 thousand rubles or in the amount of earnings for 3 years or imprisonment for up to 5 years with a payment in favor of 80 thousand rubles or In the amount of income convicted in 6 months.

Prove the fact of causing damage or extraction of large income should prosecutor's office or police. It must be said that it would be rather difficult to find an offense that would fall under criminal sanctions: control purchases are usually accomplished on small amounts, and therefore they cannot be proof of super-profits.

Responsibility for illegal entrepreneurship, which is conducting a commercial organization, fully falls on its leader. It is not attracted to criminal liability:

• citizens who concluded an employment contract with an illegal entrepreneur and operating under this contract;
• owners of real estate objects, leased, and regardless of the amount of income.

There are also circumstances that may mitigate criminal punishment. These include the positive characteristics of the guilty, as well as the case of an incident of bringing him to justice.

In addition to the very fact of illegal entrepreneurial activities, the entrepreneur's criminal liability can be attracted for:

• the use of other trademarks without appropriate permissions or indication of knowingly false information about the origin of the goods;
• production, sale, purchase of counterfeit products.

Tax liability

Sanctions for commercial activities without registration are governed by Articles 116 and 117 of the Tax Code of the Russian Federation. They suggest the recovery of taxes suffered by the state, and fines for evading the payment of these taxes.

1. An entrepreneur not registered in the FTS is fined in the amount of 10% of the income received by him (at least 20 thousand rubles). Such a punishment is applied if, by the time of tax audit, documents for registration at all were not submitted to the tax.
2. Commercial activities without registration for 90 days and more punishable with a fine of 20% of income (but at least 40 thousand rubles).
3. The penalty for the delay in registration of entrepreneurship in the FTS is 5 thousand rubles. If the delay with the design is more than 90 days, a fine of 10 thousand rubles is charged. Such penalties are applied if the registration documents are submitted after the first revenue, but to the tax audit. Celebration of registration is considered from the moment of the first revenue.

In addition to fines for the lack of state registration or its delay, the tax can detach unpaid taxes. In this case, the illegal businessman will need to pay the tax on income of individuals (NDFL) for the entire amount of income, the receipt of which will be proven. To this should be added all the penalties for the delay in taxes and a possible penalty for their non-payment - it is 20% of the amount decisled.

All these sanctions apply to the violator only by court decision.

As you can see, the responsibility for illegal business activities can be quite serious. In addition, the tax authorities are quite actively engaged in the collection of information about "illegal", so it will be quite difficult to drag your activities from interested services.

In some cases, you can avoid registration. For example, if your business is to provide services to enterprises and organizations, you can issue this cooperation documented (to conclude a contract agreement or a one-time work contract).

Optional registration as an entrepreneur and those who are leased accommodation: it is enough to conclude a contract with a tenant and pay NDFL (tax on individuals). In this case, it is only necessary to submit a declaration in the FTS annually.

However, if you are seriously planning to engage in business activities, it is not worth tightening with its official registration: for a serious entrepreneur there is nothing more important than business reputation, and trouble with government agencies can serve a bad service here.

• administrative (penalties here comes from 500 rubles and reach 2000);
• criminal (isolation from society for a certain period, cash payments from the guilty, arrest, mandatory work);
• the tax (under the violations identified there are mandatory payments from the amount obtained in the amount of 10%, but not more than 20,000 rubles, as well as 20%, if the business was carried out more than three months).

Law and order authorities

To identify the implementation of unregistered business in the prescribed manner can be the following authorized state structures:

• police;
• tax inspectorate;
• prosecutor's office;
• antimonopoly service;
• trading inspection.

The fact of violation of the law should be fixed by the verifying bodies in the Protocol. In addition, there must be no more than two months from the moment of identifying and suppressing such an offense as illegal entrepreneurial activity. Punishment The individual in this situation can only be incurred by the court decision.

Illegal business as a criminal act

In this case, the person can be under Art. 171 Code for atrocities. It comes only if the law enforcement agencies will be revealed to obtain income face in large sizes, i.e. Not less than 250,000 rubles. At the same time, the police are quite difficult to see a person in an illegal business, because for this it is necessary to conduct a control procurement for large amounts of funds, which is quite problematic. That is why, without having sufficient evidence to open the case, they will not be initiated.

Criminal liability comes for causing a particular amount of from 250,000 or more, and only after that commerce is defined as illegal entrepreneurial activities. Punishment The individual (2016) carries the following:

• a fine in the amount of up to 300,000 rubles or with the guilty perpetrators for up to 2 years;
• mandatory work;
• arrest.

If commercial activities carried out outside the law led to causing damage in a very large amount, the penalties here are from 100,000 rubles and reach 500,000. In addition, the perpetrator can be appointed a sentence of isolation from society for up to five years, but with the lowest cash payments.

It is precisely such consequences (RF). Therefore, citizens involved in commercial activities, which brings them a permanent income, best of all register in the tax inspection at the place of residence as an IP and pay contributions from the business in the state's income.

Responsibility for CACAP

Provides a fine of 500 rubles and up to 2000 for illegal business activities. The case of attracting administrative responsibility is considered by the global judge. This can occur at the place of an offenses or in the territory of the site of a citizen, if he informs about it. When imposing a fine, its size will depend on that for the first time a person made a misconduct or has already been attracted for the conduct of illegal business.

In the Administration there are several types of offenses:

• work without a license and violation of the rules of its use;
• commercial activities excluding tax.

Of course, the size of the fine will depend on the specific case. Work without special permission can be a more serious violation of the law than activities without registration. That is why fines are always appointed by the court when studying and considering the specific circumstances of the case. Law enforcement authorities, trade inspection and antimonopoly service can only identify such an offense as illegal entrepreneurship. Punishment The physical person of the CACAP suggests in the form of a fine, which will be paid by a person only on the basis of a court decision.

Sanctions

If a person is engaged in a business and did not register in the prescribed manner as an IP, then the tax is considered as illegal entrepreneurial activity. Punishment The individual (2016) will incur in the form of payment of a fine in the amount of from 20,000 rubles to 40,000. If we consider in the percentage, then it is from 10 to 20% of all incomes. In case of non-compliance with the timing of registration in inspection, an unscrupulous businessman faces a fine of 5,000 to 10,000 rubles.

Protection

If a citizen has received material damage to the implementation of a business that is out of law, he may contact the law enforcement agencies in order for the violator to be responsible. First of all, the illegal merchants become as far as possible, the tax inspectorate is interested. As already known, the Tax Code of the Russian Federation provides for responsibility in the form of considerable fines for illegal entrepreneurs who spend their business for a long time without certain documents.

An individual entrepreneurial activity of an individual is always aimed at obtaining a permanent profit from providing services or selling goods. Such a business is not registered properly in the tax inspectorate. This entails the onset of unpleasant consequences in the form of payment of fines, and in special cases and imprisonment for the guilty person. Therefore, citizens who faced illegal commerce must necessarily report it to law enforcement agencies in order to protect themselves and their loved ones from the purchase of low-quality things, products and provision of services.

Registration

In order for the activities of an individual aimed at obtaining a permanent profits, it was completely legal, he needs to register for the tax inspectorate at the place of residence as an IP. To do this, you must provide the following papers:

• written statement;
• check about the payment of state duty;
• passport;
• Inn and its photocopy.

Also, the person needs to decide on the tax system. It must be done in order to pay business contributions was easier and in less. If all documents are collected and submitted to the inspection, then the registration of the certificate of SP will take just a few days. A citizen needs to make these actions in order not to pay a fine for illegal entrepreneurial activities in the future, as well as maintain their time and money.

Varieties

Not every activity for which citizens pay money can be considered entrepreneurial. A person can receive income from:

• use of your property (it can be a surrender of housing or transport for rent for a day);
• sales of things - products, household appliances, furniture;
• provision of services - hairdressers, massage, cosmetic.

Even if the woman made a hairstyle with his acquaintance and received money from her for this, it is not obliged to immediately go to the tax and register as an IP. Now, if this is its constant occupation, bringing a stable income, then in this situation it will be necessary to register. Otherwise, such a business is illegal entrepreneurial activity, the punishment for which can be up to several thousand rubles.

Arbitrage practice

To identify unregistered merchants of the protection authorities is quite difficult and not always possible. But sometimes there are such situations in practice when buyers who received poor-quality goods themselves come to the police or tax service.

Example from the case materials:

A citizen asked her friend to help her to do in the kitchen and in the bathroom. Beautiful and modern repairs. The latter agreed, because it is a professional malarier plaster and receives a good income for such "shabashiki", although it is not officially working on anywhere and is not registered as IP.

After the woman fulfilled his work, the customer asked her to beat the ceiling again, because he was not white and clean. The citizen did not agree, took the money and left. The customer appealed to the tax with a statement to raise the latter to justice for unregistered business and presented evidence that the apartment repairs is the main income of her familiar.

The Tax Inspectorate was drawn up by the Protocol, on the basis of which the Court decided to attract a citizen to justice, which suggests a penalty of a fine to a physical person for illegal business activities. In addition, the violatrer should have registered as an IP within five days.

In this example, it can be seen that the woman simply carried out illegal commercial activities using its own work skills and skills. But she did not want to pay taxes to the state, therefore was fined the court for unlawful actions.

If a citizen constantly conducted poor-quality repairs in residential premises, as well as organizations and enterprises, where the amount of income was considered impressive and reached, for example, 300 thousand rubles, then the guilty could be brought to justice for such a criminal act as illegal entrepreneurial activity . 171 of the Criminal Code.

Appeal Resolution No. 22-5617 / 2018 22K-5617/2018 dated August 30, 2018 in case number 22-5617 / 2018

S t a n o v: The preliminary investigation authorities 1 is accused of committing a crime provided for by paragraph "B" part 2 of Art. 171 of the Criminal Code of the Russian Federation. The contested decree of the October District Court of Krasnodar dated August 14, 2018 was extended a term of content under house arrest of the accused 1 on 01 ...

Appeal Resolution No. 22-5545 / 2018 22K-5545/2018 dated August 29, 2018 in case number 22-5545 / 2018

Krasnodar Regional Court (Krasnodar Territory) - Criminal

Until September 23, 2018 inclusive. I installed: the provision of the preliminary investigation A is accused of committing crimes provided for in Part 4 of Article 159, paragraph "B" Part 2 of Art. 171, Part 4 of Article 159, Part 4 of Article 159, Part 4 of Article 159 of the Criminal Code of the Russian Federation. The investigator appealed to the court with a petition for the extension of the detention of the accused ...

Appeal Resolution No. 22K-2884/2018 dated August 28, 2018 in case No. 22K-2884/2018

B. The deadline for familiarization with the materials of the criminal case No. 1 in relation to Gorbunova A.V., accused of committing a crime of the provided paragraph "B" Part 2 of Art. 171 of the Criminal Code of the Russian Federation before June 27, 2018 inclusive. Having heard the performance of the accused Gorbunova A.V. And his defender Matumeva I.V., who supported the arguments of the appeal, the opinion of the prosecutor Yashkova ...

Appeals Resolution No. 22-1445 / 2018 dated August 28, 2018 in case number 22-1445 / 2018

Tver Regional Court (Tver Region) - Criminal

The appointment of a criminal and legal measure in the form of a trial in relation to FULL NAME1, born in 1985, accused of committing a crime provided for by paragraph "B" Part 2 of Art. 171 of the Criminal Code of the Russian Federation. Chairman Andreev V.V. Outstating the case file, the arguments of the appeal, having heard the opinion of the participants of the process, established: a criminal case against FULL NAME1, accused of signs of a crime provided for ...

Appeal Resolution No. 22K-2844/2018 dated August 22, 2018 in case No. 22K-2844/2018

Saratov Regional Court (Saratov Region) - Criminal

RF Engelskoe Saratov Region Ananyva Yu.V. 19.01.2018 on the initiation of a criminal case against it according to paragraph "B" Part 2 of Art. 171 of the Criminal Code of the Russian Federation. In this regard, the court, based on the fact that on the issues supplied in the complaint already there is already a court decision in accordance with Art. 125 Code of Criminal Procedure, came ...

Appeal Resolution No. 22K-2277/2018 3/1-30 / 2018 dated August 21, 2018 in case No. 22K-2277/2018

Supreme Court of the Republic of Crimea (Republic of Crimea) - Criminal

Registered at the address: and actually living at: not a judgmental accused at the time of the election of the preventive measure in the commission of a crime, provided for in Part 2 of Art. 171. 2 Criminal Code of the Russian Federation. Having heard the report of Judge Gritsenko Yu.F. Briefly present the content of the appealed by the resolution and the creature of the appeal, the explanation of the defender of the accused - lawyer Timakov O.S., the accused ...

Resolution No. 22K-703/2018 dated August 21, 2018 in case number 22K-703/2018

Kostroma Regional Court (Kostroma Region) - Criminal

The submitted materials, the court of June 8, 2018, a criminal case was initiated by the investigator under Part 1 of Art. 171 of the Criminal Code of the Russian Federation on the fact of illegal entrepreneurship LLC Watervetva on the territory of the Kadya district of the Kostroma region. The investigation into court was sent a petition for the search in the dwelling of FULL NAME1 by the Resolution ...

Resolution No. 22-5311 / 2018 22K-5311/2018 dated August 21, 2018 in case number 22-5311 / 2018

Krasnodar Regional Court (Krasnodar Territory) - Criminal

The judgment of the Court to leave unchanged, the court of appeal instance established: the court decree against S., accused of committing a crime, provided for by paragraph "B" Part 2 of Art. 171 of the Criminal Code of the Russian Federation, extended the term of content under house arrest for 01 month 00 days, and only to 03 months 03 days, that is, until September 17, 2018 ...

Tax and other controlling bodies often attract one or other persons to liability for illegal entrepreneurship. The bottom of the bottom is made by many accusatory sentences for this crime. However, even courts often have issues related to its legal qualifications. Let's try to figure out the most important of them.

First of all, we turn to the definition of entrepreneurial activities. According to civil law, it is "independent, activities carried out to the systematic profit from the use of property, sales of goods, work, or providing services to persons registered in this capacity in the manner prescribed by law" (clause 1 of Art. 2 GK RF).

Based on the general rule, "participants regulated by civil law relations (including entrepreneurial. - Avt.) Are citizens and legal entities" (paragraph 1 of Art. 2 of the Civil Code of the Russian Federation), they are subjects of the criminal principles provided for by Art. 171 of the Criminal Code of the Russian Federation. Possible participation of public legal entities (for example, the Russian Federation, subjects of the Russian Federation and municipalities) in this material we will not consider.

Citizens and legal entities. Legal capacity

Unlike legal entities, many citizens are inhomogeneously. It consists of citizens possessing:

• only with general legal personality;
• both in common and special legal personality (that is, entrepreneurs).

According to the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activities without the formation of a legal entity: "(paragraph 1 of Art. 23 of the Civil Code of the Russian Federation). It applies rules that "which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the creatures of the legal relationship" (paragraph 3 of Article 23 of the Civil Code of the Russian Federation).

The Code allocates several categories of such citizens and on this basis connects the moment of acquiring special legal personality with the onset of different events:

• the total category (entrepreneurs without the formation of a legal entity) - "from the moment of state registration as an individual entrepreneur" (paragraph 1 of Art. 23 of the Civil Code of the Russian Federation);
• special Category "Head of the Peasant or Farm, which operates without the formation of a legal entity" - "since the state registration of the peasant (farmer) economy" (paragraph 2 of Art. 23 of the Civil Code of the Russian Federation).

The legal capacity and legal activity capacity arise and stop at the same time at the time of its creation and at the time of making a record of its exclusion from the Unified State Register of Legal Entities (paragraph 3 of Art. 49 of the Civil Code of the Russian Federation).

The emergence of citizens and legal entities of special legal personality, the legislator associates with the receipt of a special permit (license). According to civil law "Right: to carry out activities to the occupation of which the license is necessary to obtain a license, it arises from the moment of obtaining such a license or to the period specified in it and terminates the expiration of its term, unless otherwise established by law or other legal acts" (paragraph 3 Art. 49 of the Civil Code of the Russian Federation).

Note that legal entities are also inhomogeneous, and according to Art. The 50 Civil Code they are divided into two large groups: commercial and non-commercial organizations. The criterion of such a classification is the purpose of activity. Commercial organizations are subjects of business activities. The main goal of their work is to receive profits. At the same time, non-profit organizations are not subjects of business, as profit is not their main goal (paragraph 1 of Art. 50 of the Civil Code of the Russian Federation). Next, we will describe how this circumstance shows its positive and negative importance for the criminal law qualifications of illegal entrepreneurship.

Objective and subjective sides of the crime

Let us turn to the definition of illegal entrepreneurship, which is given in Art. 171 of the Criminal Code of the Russian Federation. It is understood under it "the implementation of entrepreneurial activities without registration or with violation of registration rules, as well as submission to the body that carries out the state registration of legal entities and individual entrepreneurs, documents containing obviously false information, or the implementation of entrepreneurship without a special permit (license) in Cases when such permission (license) is mandatory, or with a violation of license requirements and conditions, if this act has caused major damage to citizens, organizations or state or is associated with the extraction of income in large amount "(Part 1 of Art. 171 of the Criminal Code of the Russian Federation) .

Start characterize this composition is preferable to the objective side. First of all, illegal entrepreneurship is always an action. It can be two types:

• with vice in registering its subject;
• with a defect in the special legal personality of its subject.

Thus, public danger This crime takes place not as a result of the criminal nature of the subject, that is, the very action (entrepreneurial activity). The danger arises as a result of the criminal direction of the subject to the accomplishment of actions externally absolutely legal, but entailing illegal revenues.

Therefore, the Plenum of the Armed Forces of the Russian Federation indicated that "in cases where the person, having the purpose of extracting income, is engaged in illegal activities, the responsibility for which is provided for by other articles of the Criminal Code of the Russian Federation (for example, the illegal manufacture of firearms, ammunition, the sale of narcotic drugs, psychotropic substances and their Analogues), who had any additional qualifications on Article 171 of the Criminal Code of the Russian Federation, does not require "(paragraph 18 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of 18.11.2004 No. 23, hereinafter referred to.

From the subjective side, this crime is characterized by direct intent and mercenary purposes.

Subjects of crime

When describing illegal entrepreneurship with objective and subjective parties, back to the subjects of this crime, or rather, to the problem of establishing their circle. As noted above, the legislator for the qualification of Acts as illegal entrepreneurship has established two types of subject's defect:

• in registration, that is, in the very existence;
• in the emergence of special legal personality.

Pulk at registration can be expressed in various forms. It can be like lack of registration and violation of its rules.

At the same time, "the implementation of entrepreneurial activities without registration will take place only in cases where in the Unified State Register for Legal Entities and the Unified State Register for Individual Entrepreneurs there is no recording on the creation of such a legal entity or acquiring the status of an individual entrepreneur or contains a recording on liquidation legal entity or termination of the activities of an individual as an individual entrepreneur "(paragraph 3 of the Resolution No. 23). Under the implementation of entrepreneurial activities with violation of registration rules, it should be understood "the maintenance of such activities of the subject of entrepreneurship, which was knowingly known that, during registration, violations were committed, giving grounds for recognizing registration of invalid (for example, the full documents were not submitted, as well as data or other information necessary for registration, or it was produced contrary to the existing prohibitions "(clause 3 of the Resolution No. 23).

The Civil Code of the Russian Federation twice allows for the possibility of legal entrepreneurial activities without registration, both for citizens and legal entities. So, in the cases provided for by paragraph 4 of Art. 23 Code, "A citizen who carries out entrepreneurial activities without the formation of a legal entity with a violation of the requirements: (on registration. - Aut.) It is not entitled to refer to the transactions concluded by him at the same time that he was not an entrepreneur. The court can apply to such transactions Rules: (GK of the Russian Federation. - Aut.) On liabilities related to the implementation of entrepreneurial activities. "

It should be noted that the norm of Art. 198 of the Criminal Code of the Russian Federation (in it it is about evading the payment of taxes with individuals) is formulated based on the same principle, that is, the subsequent legitimation of illegal actions and applies to the legal relationship between the special regime of legal regulation.

Fastening in para. 1 p. 3 Art. 49 of the Civil Code of the Russian Federation, the provision of the legal entity of general legal personality in full since its inception, the legislator made the possibility of existence of "backlash". From the moment of the company's creation until its state registration and making entry, the EGRUL must pass at least five days. This is the term of registration of Jurlitz. This exception cannot be neglected. Illegal entrepreneurship should be really illegal. In addition, exceptions are special norms - both with respect to the norms register standards of legal entities and the (for example, with respect to the norm contained in Art. 171 of the Criminal Code of the Russian Federation).

There is another nuance: commercial activities of companies owning property on the right of economic management and operational management, as well as non-commercial organizations that do not distribute profits between participants, but during their activities it is retrieved with enviable constancy. On this issue, silent both the Criminal Code of the Russian Federation and the Plenum of the Armed Forces of the Russian Federation. Accent with reference to paragraph 1 of Art. The 2 Civil Code of the Russian Federation on the systematic receipt of profits from activities (paragraph 1 of the Resolution No. 23) does not solve this problem. It remains unexplained, from which moment "systematics" begins, if we consider that entrepreneurial activity is underlying.

Plok in the emergence of special legal personality does not cause special issues. The license procedure is sufficiently formalized. Only in a situation where the term of its action has expired, and the person continues to carry out a licensed activity and after some time receives a new license or extends the period of validity of the previous one, it may be necessary to further qualify for such an act under Art. 159 of the Criminal Code of the Russian Federation "Fraud".

The interpretation of the Russian Armed Forces of the Russian Federation, the legal qualification of the activities of a legal entity, which has special legal capacity and in connection with this is incapable of conducting other activities, except for the sake of which it was created, as activities without registration or as an activity without a license (clause 6 of the Resolution N 23). Here, the plenum contradicts himself: paragraph 6 of the decisions of N 23 contradicts paragraph 3 of the same resolution, expanding the content of the concepts of "activities without registration" and "activities without a license". It seems that in this case the Plenum of the Russian Armed Forces of the Russian Federation was supposed to take advantage of the right to interpret the rules of law and give an expansion interpretation not to these concepts, but the concept of "illegal entrepreneurship". Activities of the subject of law and entrepreneurship outside the exclusive competence can not be recognized by activities without registration.

Responsibility: Criminal, Tax, Administrative

If the person conducts entrepreneurship without registration (Art. 171 of the Criminal Code of the Russian Federation), the state does not have the ability to specifically set the amount of its income - a taxable base and calculate the amount of taxes or fees. Regulations holds the Federal Tax Service of the Russian Federation (Art. 2 of the Federal Law of 08.08.2001 N 129-FZ). The Tax Code of the Russian Federation provides for administrative responsibility for violation of the term of registration with the tax authority (Art. 116 of the Tax Code of the Russian Federation) and evasion of such (Art. 117 of the Tax Code of the Russian Federation). Article 14.1 of the Administrative Code of the Russian Federation, establishing administrative responsibility for conducting entrepreneurial activities without state registration or a special permit (license), duplicates the provisions of the Tax Code of the Russian Federation (in particular, paragraph 1 of Art. 117 of the Tax Code of the Russian Federation).

It should be borne in mind that in the COAP of the Russian Federation it is about administrative responsibility for the implementation of entrepreneurial activities without the State Registration. The Tax Code of the Russian Federation provides for the onset of administrative responsibility at a later stage, that is, when a person is registered as an organization or an individual entrepreneur, but at the same time evades registering in the tax authority as a subject of taxation (taxpayer). This circumstance is due to the application of various measures of administrative responsibility in the case of the person or another of the above offenses.

When limiting the scope of the norms of administrative and criminal law, it is necessary to keep in mind that the criminal law norm (Art. 171 of the Criminal Code of the Russian Federation) is material in nature (the material composition of the offense - crime). A prerequisite for its application is to cause damage to a certain amount or illegal income extraction in a certain amount. The administrative and legal norm is a formal nature (the formal composition of the offense) and therefore does not require the establishment of the fact of causing damage. Only a formal violation of the legal prescription (paragraph 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of October 24, 2006 No. 18).

Unfortunately, the Presidium of the Armed Forces of the Russian Federation discusses the problem of both law enforcement and judiciary to the practical activity of both law enforcement and judiciary: the separation of the scope of the norms of administrative, criminal and civil law in the implementation of mixed legal regulation of the same legal relations. As a result, the issue, the norm of which industry of the right to apply to solve a particular incident, whether it is relevant and unresolved. Therefore, every time he is solved in different ways. A meager amount of damage established as a lower boundary to apply the norm of criminal law, on the one hand, makes it nominal, and on the other, it gives a wide space for abuse, creating a situation in which one person attracts one person to administrative , and the other to criminal liability. Moreover, for the damage caused in the amount of 250,000 rubles and 1 pennies, this person does not always receive a sentence of a conditional measure. By the way, the third person can get rid of a light fright in general, having received a judicial decision on the recovery of some amount from him.

In the topic "illegal entrepreneurship" remains another question that needs to be disclosed. Namely - about qualifications under Art. 171 and 199 (198) of the Criminal Code. On the one hand, illegal entrepreneurship (Art. 171 of the Criminal Code of the Russian Federation) is a common norm in relation to tax evasion from the organization (Article 199 of the Criminal Code of the Russian Federation) or from an individual (Article 198 of the Criminal Code of the Russian Federation). Therefore, when establishing the fact of evasion from paying taxes and (or) fees, personnel should be qualified under Art. 198 or art. 199 Codex in order to avoid dual punishment for the same action.

On the other hand, the contents of the norm formulated in Art. 171 of the Criminal Code, significantly narrows the scope of the concept of "illegal entrepreneurship". It does not allow to determine the data of the composition as a common and special in relation to each other, that is, the volume of one composition does not overlap the volume of the other. In addition, the subject line of legal relations in these cases differs significantly: in cases of tax evasion and (or) fees, one of the parties to legal relations are fiscal bodies, and in the event of illegal entrepreneurs - the management bodies of special competence, not related to fiscal, and also The fiscal body in the implementation of state registration and maintenance of a single state registry. Consequently, if there is in the actions of the face of signs of the composition of the crimes provided for by Art. 171 and 198 (199) of the Criminal Code of the Russian Federation, they should be qualified for the aggregate. This confirms paragraph 2 of the Resolution No. 23, in which the Plenum of the Armed Forces of the Russian Federation indicates how to qualify the actions of the individuality, which has acquired property and leased it, without paying taxes.

E.V. Familyanov,
Mgka, candidate jurid. Science