Implementation of illegal entrepreneurial activity of the Criminal Code of the Russian Federation. Illegal business - court practice

1. Carrying out entrepreneurial activity without registration or without a license in cases where such a license is mandatory, if this act has caused large damage to citizens, organizations or the state, or is associated with the extraction of income on a large scale, with the exception of cases provided for in Article 171.3 of this Code, -

shall be punishable by a fine in an amount of up to three hundred thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to two years, or by compulsory works for a term of up to four hundred and eighty hours, or by arrest for a term of up to six months.

2. The same act:

a) committed by an organized group;

b) associated with the extraction of income on an especially large scale;

c) has lost its force, -

shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to three years, or compulsory labor for a term of up to five years, or imprisonment for a term of 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 convicted person for a period of up to six months or without it.

Note... Abolished.

Commentary on 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 licensing of certain types of activities" (as amended on 28.07.2012), licensing bodies are authorized federal executive bodies or their territorial bodies and in the case of transfer of the powers of the Russian Federation in the field of licensing to the state authorities of the constituent entities of the Russian Federation, the executive authorities of the constituent entities of the Russian Federation that carry out licensing.
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SZ RF. 2011. N 19. Art. 2716; RG. 2011. No. 160; SZ RF. 2011. N 43. Art. 5971; No. 48. Art. 6728; 2012. N 26. Art. 3446; N 31. Art. 4322.

Licensing of certain types of activities is regulated by other federal laws. So, licensing of educational activities is provided for by 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 exercising control and supervision functions in the field of education (Rosobrnadzor), or by the executive body of the constituent entity of the Russian Federation exercising the delegated powers of the Russian Federation in the field of education.
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RG. 2012.30 dec. Comes into force on September 1, 2013. Until this time, the Law of the Russian Federation of July 10, 1992 N 3266-1 "On Education" (as amended on November 12, 2012).

Local self-government bodies can also act as licensing authorities, for example, in cases of issuing a license for the right to conduct retail sale of alcoholic beverages. Article 18 of the Federal Law of 22.11.1995 N 171-FZ "On state regulation of the production and turnover of ethyl alcohol and alcoholic beverages" (as amended on 30.12.2012) provides that licenses for the retail sale of alcoholic beverages are issued by the constituent entities of the Russian Federation in the manner established by them subject to the provisions of this Federal Law, only to organizations. The authority to license the retail sale of alcoholic beverages can be delegated by a constituent entity of the Russian Federation to local governments in accordance with Art. 7 of the specified 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; No. 43. Art. 4412; 2007. N 1 (part 1). Art. eleven; N 17. Art. 1931; N 31. Art. 3994; No. 49. Art. 6063; 2008. N 30 (part 2). Art. 3616; 2009. N 1. Art. 21; No. 52 (part 1). Art. 6450; 2010. N 15. Art. 1737; 2011. N 1. Art. 42; No. 27. Art. 3880; RG. 2011. No. 159, 161; SZ RF 2012. N 26. Art. 3446; 2012. N 31. Art. 4322; RG. 2012. N 301.

2. Carrying out entrepreneurial activities without registration will take place only in cases where there is no entry in the Unified State Register of Legal Entities and the Unified State Register of Individual Entrepreneurs about the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur, or there is a record of the liquidation of a legal entity or termination of the activity of an individual as an individual entrepreneur.

3. If the federal law is allowed to engage in entrepreneurial activity only with 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 on a large or especially large scale, or causing major damage to citizens, organizations or the state, should be qualified as carrying out illegal business activities without a special permit (license).

4. If federal legislation excludes the relevant type of activity from the list of activities that are permitted only on the basis of a special permit (license), the actions of a person who were engaged in this type of entrepreneurial activity lack the corpus delicti provided for by the article being commented on.

5. Income in the commented article means the proceeds from the sale of goods (works, services) for the period of illegal entrepreneurial activity without deducting the expenses incurred by the person related to the illegal entrepreneurial activity.

6. As a constitutive, but at the same time an alternative to large-scale income, a sign of the objective aspect of the crime in question, the legislator indicated the infliction of large damage by the act. There are cases when such damage is actually caused and, at the same time, is not a sign of another corpus delicti. For example, non-payment of registration fees and obtaining various licenses could be considered as damage. However, in order to qualify for the article under discussion, it is necessary that such damage can be regarded as major, i.e. exceed 1 million 500 thousand rubles. (see note. to Art. 169 of the Criminal Code). Based on clause 16 of the Resolution of the Plenum of the RF Armed Forces dated November 18, 2004 N 23, unpaid taxes on income received from illegal entrepreneurial activity can be attributed to damage.

7. The subjective side is characterized by both direct and indirect intent. In the text of the commented article, there is no indication of a mercenary motive, however, its establishment is implied on the basis that entrepreneurial activity, including illegal, is necessarily aimed at systematic profit from the use of property, the sale of goods, the performance of work or the provision of services.

8. The subject of the crime provided for by the commented article can be either a person who has the status of an individual entrepreneur, or a person who carries out entrepreneurial activities without state registration as an individual entrepreneur (hence, the subject in the latter case is general).

When an organization (regardless of the form of ownership) carries out illegal entrepreneurial activities, responsibility under the commented article is subject to a person who, due to his official position, permanently, temporarily or by special authority was directly entrusted with the responsibilities of managing the organization (for example, the head of the executive body of a legal entity or otherwise a person who has the right to act on behalf of this legal entity without a power of attorney), 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 a person, with the aim of earning income, is engaged in illegal activities, liability for which is provided for by other articles of the Criminal Code (for example, the illegal manufacture of firearms, ammunition, the sale of narcotic drugs, psychotropic substances and their analogues), the additional qualification he has committed on the commented article does not require.

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

11. The amount of especially large income is defined in note. to Art. 169 of the Criminal Code, it must exceed 6 million rubles.

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Many of us periodically provide some kind of services to our friends (or their acquaintances): help with repairs, get a haircut, order some goods via the Internet, sew a dress or repair a car. And they do it for a certain reward. And if such a business clearly goes beyond the small side job and begins to bring tangible profits, it can be qualified as illegal entrepreneurship. This activity can be seriously interested not only by the tax authorities, but also by the police and other structures.

You also need to know that to perform some types of work, it is not enough to register as an individual entrepreneur or open a company - you will also need a special permit (license). This applies to medical and cosmetic services, passenger transportation, design work, etc. To conduct such a business without completing all the proper documents is a much more serious offense than just an unregistered business.

Letter of the law

Entrepreneurial, in accordance with the Civil Code, is an activity that is carried out with the aim of systematically making a profit at your own risk. Profit can be obtained through the implementation of work, the sale of goods, the lease of property, the provision of paid services. A citizen conducting a commercial activity must register as an entrepreneur without fail.

As you can see, the main differences between a private transaction between citizens and entrepreneurship are the systematic nature of activities and profit making. So, a one-time purchase and sale transaction or a service once rendered for a fee cannot be considered illegal business activity. But produced twice or more in a year, they become systematic and fall under the definition of commercial activity.

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

Illegal business in Russia is considered to be:

1. Commercial activity that is carried out without registering an individual enterprise or legal entity. This also includes activities that are executed with violations or with false data indicated in registration documents.
2. Business activities carried out without a license, if required.
3. Gross violations of licensing requirements.
4. Illegal business conduct can cause serious trouble for an entrepreneur. For this offense, the law provides for three types of liability: tax, administrative and even criminal.

Administrative responsibility

The Code of Administrative Offenses for conducting illegal commercial activities provides for the following penalties:

1. For activities unregistered in accordance with the established procedure (individual entrepreneur or LLC), a fine is imposed in the amount of 500 to 2000 rubles.
2. Fines may be imposed for carrying out those activities that are subject to compulsory licensing without appropriate permits: individuals - from 1 to 2.5 thousand rubles, for officials - 4-5 thousand rubles, for legal entities - 40-50 thousand rubles. In this case, unlicensed products and the means of their production may be confiscated.
3. If there is a license, but the licensing requirements are violated, this 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 grossly violated, entrepreneurial activity may be suspended for 90 days, the fine in this case is 4–5 thousand rubles for individuals and officials, and 40–50 thousand rubles for organizations.

The fact of illegal entrepreneurship can be established by:

• tax office,
• antimonopoly committee,
• consumer market supervisors,
• police,
• the prosecutor's office.

A record of violations can be drawn up as a result of verification activities: inspection of the premises, making test purchases, etc. Any signal that illegal business activity is being conducted or violations of the work are allowed as a reason for such a check.

Cases of illegal business are considered by a magistrate at the place of its implementation or at the place of residence of the offender. Such a case must be considered within two months after the corresponding protocol has been drawn up. If this does not happen, the case should be closed. If the protocol is drawn up with violations, there are contradictions and inaccuracies in it, the offender can avoid punishment: while the protocol is reissued and errors are corrected, the time allotted for prosecution may expire.

Criminal liability

In some cases, illegal business activities can lead to criminal liability. This happens if the state, organizations or individuals are seriously damaged as a result of such activities, or when an entrepreneur makes large profits from an illegal business. A large amount (both damage and profit) is considered to be the amount of 250 thousand rubles, especially large - from 1 million rubles.

In this case, the illegal entrepreneur will be punished in accordance with the Criminal Code of the Russian Federation:

1. Causing damage on a large scale is punishable by a fine of up to 300 thousand rubles or in the amount of the offender's earnings for 2 years, 180-240 hours of compulsory work or imprisonment for 4-6 months.
2. Damage on an especially large scale or the same actions committed by a group of persons entail a fine in the amount of 100-500 thousand rubles or in the amount of 3 years' earnings or imprisonment for up to 5 years with payment of 80 thousand rubles to the state or in the amount of the convicted person's income for 6 months.

The prosecutor's office or the police must prove the fact of damage or large income. I must say that it is quite difficult to detect an offense that would fall under criminal sanctions: test purchases are usually made for small amounts, and therefore they cannot become evidence of excess profits.

Responsibility for illegal entrepreneurship carried out by a commercial organization rests entirely with its head. The following are not subject to criminal liability:

• citizens who have entered into an employment contract with an illegal entrepreneur and are acting under this contract;
• owners of leased real estate, regardless of the amount of income.

There are also circumstances that can mitigate the criminal penalty. These include the positive characteristics of the perpetrator, as well as the singularity of the case of bringing him to justice.

In addition to the very fact of illegal entrepreneurial activity, I can bring an entrepreneur to criminal liability for:

• the use of someone else's trademarks without appropriate permissions or the indication of deliberately 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 involve the collection of taxes that have not been received by the state, and fines for evading the payment of these taxes.

1. An entrepreneur who is not registered with the Federal Tax Service is fined in the amount of 10% of his income (at least 20 thousand rubles). Such a penalty is applied if, at the time of the tax audit, registration documents had not been submitted to the tax office at all.
2. Doing business without registration for 90 days or more is punishable by a fine of 20% of income (but not less than 40 thousand rubles).
3. The fine for late registration of entrepreneurship with the Federal Tax Service is 5 thousand rubles. If the delay with registration is more than 90 days, a fine of 10 thousand rubles will be charged. Such penalties apply if documents for registration are submitted after the first proceeds, but before the tax audit. The delay in registration is considered from the moment of the first proceeds.

In addition to fines for the absence of state registration or its delay, the tax authority may charge additional unpaid taxes. In this case, an illegal businessman will need to pay personal income tax (PIT) on the entire amount of income, the receipt of which will be proven. To this should be added all penalties for late payment of taxes and the possible penalty for non-payment - it is 20% of the additionally assessed amount.

All these sanctions are applied to the offender only by a court decision.

As you can see, liability for illegal business activities can be quite serious. In addition, the tax authorities are quite actively engaged in collecting information about "illegal immigrants", so it will be quite difficult to conceal their activities from interested services.

In some cases, registration can be avoided. For example, if your business is to provide services to enterprises and organizations, you can formalize this cooperation with documents (conclude a work contract or a one-time labor contract).

It is not necessary to register as an entrepreneur and for those who rents out housing: it is enough to conclude an agreement with the tenant and pay personal income tax (personal income tax). In this case, you only need to submit a declaration annually to the Federal Tax Service.

However, if you are seriously planning to engage in entrepreneurial activity, you should not delay with its official registration: for a serious entrepreneur, there is nothing more important than a business reputation, and troubles with government agencies can do a disservice here.

• administrative (penalties here range from 500 rubles and reach 2000);
• criminal (isolation from society for a certain period, cash payments from the income of the culprit, arrest, compulsory work);
• tax (in case of revealed violations, mandatory payments are provided on the amounts received in the amount of 10%, but not more than 20,000 rubles, as well as 20% if the business has been carried out for more than three months).

Law enforcement

The following authorized state structures can identify the implementation of a business that is not registered in the established order:

• police;
• tax inspection;
• the prosecutor's office;
• antimonopoly service;
• trade inspection.

The fact of violation of the law must be recorded by the inspection authorities in the protocol. In addition, no more than two months should pass from the date of detection and suppression of such an offense as illegal business activity. An individual in this situation can only be punished by a court decision.

Illegal business as a criminal act

In this case, the person may be under Art. 171 of the Atrocities Code. It occurs only if the law enforcement authorities reveal that a person has received income on a large scale, i.e. not less than 250,000 rubles. At the same time, it is quite difficult for the police to catch a person in an illegal business, because this requires a test purchase for large amounts of money, which is quite problematic. That is why, if they do not have sufficient evidence to open a case, they will not initiate it.

Criminal liability occurs for infliction especially in the amount of 250,000 or more, and only after that, commerce is defined as illegal entrepreneurial activity. The penalty for an individual (2016) is as follows:

• a fine in the amount of up to 300,000 rubles or from the income of the guilty person for a period of up to 2 years;
• compulsory work;
• arrest.

If a commercial activity carried out outside the law entailed infliction of damage in a very large amount, then the penalties here range from 100,000 rubles and reach 500,000. In addition, the guilty person may be punished in the form of isolation from society for up to five years, but with the lowest monetary payments.

It is with these consequences that (RF) ends. Therefore, for citizens engaged in commercial activities that bring them a permanent income, it is best to register with the tax office at the place of residence as an individual entrepreneur and pay contributions from the business to the state income.

Responsibility for the Code of Administrative Offenses

Provides a fine from 500 rubles to 2000 for illegal business activities. The case of bringing to administrative responsibility is considered by a magistrate. This can occur at the place where the offense was committed or on the territory of the citizen's area of ​​residence, if he informs about it. When a fine is imposed, its amount will depend on whether the person has committed a misdemeanor for the first time or has already been involved in illegal business.

There are several types of offenses in the Code of Administrative Offenses:

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

Of course, the amount of the fine will depend on the individual case. Working without special permission can be a more serious violation of the law than working without registration. That is why fines are always imposed by the court when studying and considering the specific circumstances of the case. Law enforcement agencies, the trade inspection and the antimonopoly service can only reveal such an offense as illegal business activity. The punishment for an individual by the Code of Administrative Offenses is 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 business and has not registered in the prescribed manner as an individual entrepreneur, then the tax office is considered as illegal business activity. An individual (2016) will be punished in the form of a fine in the amount of 20,000 rubles to 40,000. If we consider it as a percentage, then this is from 10 to 20% of all income. If the deadlines for registration with the inspection are not met, an unscrupulous businessman faces a fine of 5,000 to 10,000 rubles.

Protection

If a citizen has received material damage from doing business that is outside the law, he can personally apply to the law enforcement agencies in order to bring the violator to justice. First of all, the tax inspectorate is interested in keeping illegal merchants as small as possible. As is already known, the Tax Code of the Russian Federation provides for liability in the form of paying considerable fines for illegal entrepreneurs who have been carrying out their business for a long time without specific documents.

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

Registration

In order for an individual's activities aimed at obtaining permanent profit to be completely legal, he needs to register with the tax office at the place of residence as an individual entrepreneur. To do this, you must provide the following papers:

• written statement;
• check for payment of state duty;
• passport;
• TIN and its photocopy.

Also, the person needs to decide on the taxation system. This must be done in order to make it easier to pay contributions from the business and in a smaller amount. If all the documents are collected and submitted to the inspectorate, then the registration of the IP certificate will take only a few days. A citizen needs to perform these actions in order not to pay a fine for illegal entrepreneurial activity in the future, as well as to save his 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 (this can be the renting of housing or transport for a day);
• sale of things - food, household appliances, furniture;
• rendering of services - hairdressing, massage, cosmetic.

Even if a woman made her friend's hair and received money from her for it, she is not obliged to immediately go to the tax office and register as an individual entrepreneur. Now, if this is her 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

It can be quite difficult and not always possible for law enforcement agencies to identify unregistered merchants. But sometimes in practice there are situations when buyers who have received a low-quality product come to the police or the tax office themselves.

An example from the case file:

The citizen asked her friend to help her make a beautiful and modern renovation in the kitchen and bathroom. The latter agreed, because she is a professional plasterer-painter and receives a good income for such "shabashki", although she does not officially work anywhere and is not registered as an individual entrepreneur.

After the woman had done her job, the client asked her to whitewash the ceiling again because it was not white and clean enough. The citizen did not agree, took the money and left. The customer applied to the tax office to bring the latter to responsibility for an unregistered business and provided evidence that apartment renovation was the main income of her friend.

The tax inspectorate drew up a protocol, on the basis of which the court made a decision to bring the citizen to justice, which implies a fine to an individual for illegal entrepreneurial activity in the form of punishment. In addition, the offender had to register as an individual entrepreneur within five days.

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

If a citizen constantly carried out low-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 culprit could be brought to justice for such a criminal act as illegal entrepreneurial activity of Art. ... 171 of the Criminal Code.

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

ST A N O V I L: The bodies of preliminary investigation 1 are accused of committing a crime under paragraph "b" of Part 2 of Art. 171 of the Criminal Code of the Russian Federation. The contested decision of the Oktyabrskiy District Court of Krasnodar of 08/14/2018 extended the term of detention under house arrest for the accused 1 on 01 ...

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

Krasnodar Regional Court (Krasnodar Region) - Criminal

Until September 23, 2018 inclusive. ESTABLISHED: The preliminary investigation body A is accused of committing crimes under Part 4 of Article 159, paragraph "b" of 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 applied to the court with a motion to extend the term of detention of the accused ...

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

V. set a time limit for familiarization with the materials of the criminal case No. 1 against A. Gorbunov, accused of committing a crime under paragraph "b" of Part 2 of Art. 171 of the Criminal Code of the Russian Federation until June 27, 2018 inclusive. After hearing the speech of the accused Gorbunov A.The. and his lawyer Matuseeva I.V., who supported the arguments of the appeal, the opinion of the prosecutor Yashkov ...

Decision of appeal No. 22-1445 / 2018 of August 28, 2018 in case No. 22-1445 / 2018

Tver Regional Court (Tver Region) - Criminal

The appointment of a criminal law measure in the form of a court fine in respect of FULL NAME1, born in 1985, accused of committing a crime under paragraph "b" Part 2 of Art. 171 of the Criminal Code of the Russian Federation. Presiding Andreev V.The. Having presented the materials of the case, the arguments of the appeal, after hearing the opinion of the participants in the process, I ESTABLISHED: Criminal case against FULL NAME1, accused on the grounds of a crime under ...

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

Saratov Regional Court (Saratov Region) - Criminal

RF "Engelskoe" Saratov region Ananyeva Yu.V. of 19.01.2018 on the initiation of a criminal case against her under clause "b" part 2 of Art. 171 of the Criminal Code of the Russian Federation. In this regard, the court, proceeding from the fact that on the issues raised in the complaint, there is already a court decision in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation, came ...

Appeal Resolution No. 22K-2277/2018 3 / 1-30 / 2018 of 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 residing at the address: unconvicted accused at the time of the election of a preventive measure for committing a crime under Part 2 of Art. 171. 2 of the Criminal Code of the Russian Federation. After hearing the report of Judge Gritsenko Yu.F. summarizing the content of the contested decision and the essence of the appeal, explanations of the defender of the accused - lawyer O.S. Timakov, the accused ...

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

Kostroma Regional Court (Kostroma Region) - Criminal

Submitted materials, court U ST A N O V I L On June 8, 2018, the investigator opened a criminal case under Part 1 of Art. 171 of the Criminal Code of the Russian Federation on the fact of illegal business of LLC Vodavetv on the territory of the Kadyi district of the Kostroma region. The investigator sent a request to the court to conduct a search in the dwelling FULL NAME1 Decree ...

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

Krasnodar Regional Court (Krasnodar Region) - Criminal

The court's decision to leave unchanged, the court of appeal ESTABLISHED: The contested decision of the court against Sh., Accused of committing a crime under paragraph "b" of Part 2 of Art. 171 of the Criminal Code of the Russian Federation, the term of detention under house arrest was extended by 01 month 00 days, and only up to 03 months 03 days, that is, until September 17, 2018 ...

Tax and other regulatory authorities quite often hold certain persons accountable for illegal business. Many convictions for this crime are handed down every day. However, even the courts often have questions related to his legal qualifications. Let's try to understand the most important of them.

First of all, let us turn to the definition of entrepreneurial activity. According to civil law, such is "an independent activity carried out at its own risk, aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law" (Clause 1, Article 2 of the Civil Code RF).

Based on the general rule "Participants of relations regulated by civil legislation (including business ones. - Auth.) Are citizens and legal entities" (clause 1 of Art. 2 of the Civil Code of the Russian Federation), they are the subjects of the corpus delicti under Art. 171 of the Criminal Code of the Russian Federation. We will not consider the possible participation of public legal entities (for example, the Russian Federation, constituent entities of the Russian Federation and municipalities) in this material.

Citizens and legal entities. Legal capacity

Unlike legal entities, the multitude of citizens is heterogeneous. It consists of citizens possessing:

• only by general legal personality;
• both general 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 activity without forming a legal entity:" (Clause 1 of Art. 23 of the Civil Code of the Russian Federation). It is subject to the rules "which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship" (Clause 3, Article 23 of the Civil Code of the Russian Federation).

The Code distinguishes several categories of such citizens and, on this basis, links the moment of their acquisition of special legal personality with the onset of various events:

• general category (entrepreneurs without the formation of a legal entity) - "from the moment of state registration as an individual entrepreneur" (clause 1 of article 23 of the Civil Code of the Russian Federation);
• a special category "the head of a peasant or farm enterprise, carrying out activities without forming a legal entity" - "from the moment of state registration of a peasant (farm) farm" (clause 2 of article 23 of the Civil Code of the Russian Federation).

The legal capacity and legal capacity of a legal entity arise and terminate simultaneously 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 (clause 3 of article 49 of the Civil Code of the Russian Federation).

The legislator connects the emergence of citizens and legal entities of special legal personality with the receipt of a special permit (license). According to civil law, "the right: to carry out activities for which it is necessary to obtain a license, arises from the moment of obtaining such a license or within the period specified in it and terminates upon the expiration of its validity, unless otherwise provided by law or other legal acts" (clause 3 Article 49 of the Civil Code of the Russian Federation).

Note that legal entities are also heterogeneous, and according to Art. 50 of the Civil Code of the Russian Federation, they are divided into two large groups: commercial and non-commercial organizations. The criterion for such a classification is the purpose of the activity. Commercial organizations are subjects of entrepreneurial activity. The main goal of their work is to make a profit. At the same time, non-profit organizations are not subjects of entrepreneurial activity, since making a profit is not their main goal (clause 1 of article 50 of the Civil Code of the Russian Federation). Next, we will talk about how this circumstance manifests its positive and negative significance for the criminal-legal qualification of illegal entrepreneurship.

Objective and subjective sides of the crime

Let us turn to the definition of illegal business, which is given in Art. 171 of the Criminal Code of the Russian Federation. It is understood as "carrying out entrepreneurial activities without registration or in violation of registration rules, as well as submission to the body that carries out state registration of legal entities and individual entrepreneurs, documents containing deliberately false information, or carrying out entrepreneurial activities without a special permit (license) in cases when such a permit (license) is mandatory, or in violation of licensing requirements and conditions, if this act caused large damage to citizens, organizations or the state or is associated with the extraction of income on a large scale "(part 1 of article 171 of the Criminal Code of the Russian Federation) ...

It is preferable to begin to characterize this composition from the objective point of view. First of all, illegal business is always an action. It can be of two types:

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

Thus, this crime acquires social danger not due to the criminal nature of the object, that is, the action itself (entrepreneurial activity). The danger arises as a result of the subject's criminally directed intent to perform actions that are outwardly absolutely legal, but entail illegal receipt of income.

Therefore, the Plenum of the RF Armed Forces indicated that "in cases where a person, with the aim of generating income, is engaged in illegal activities, liability 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 analogs), his deeds do not require additional qualifications under Article 171 of the Criminal Code of the Russian Federation "(clause 18 of the Resolution of the Plenum of the RF Armed Forces of November 18, 2004 N 23, hereinafter - Resolution N 23).

On the subjective side, this crime is characterized by direct intent and selfish purpose.

Subjects of the crime

Having described illegal business from the objective and subjective sides, let us return to the subjects of this crime, or rather to the problem of establishing their circle. As noted above, the legislator has established two types of vice of a subject for qualifying an act as illegal business:

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

A flaw in registration can take many forms. This can be either a lack of registration or a violation of its rules.

At the same time, "the implementation of entrepreneurial activities without registration will take place only in cases where there is no entry in the Unified State Register for Legal Entities and the Unified State Register for Individual Entrepreneurs about the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur, or there is a record of liquidation a legal entity or the termination of the activity of an individual as an individual entrepreneur "(clause 3 of Resolution No. 23). Under the implementation of entrepreneurial activity in violation of the registration rules, one should understand "the conduct of such an activity by an entrepreneurial subject who was knowingly aware that there were violations during registration that give grounds for invalidating the registration (for example, documents were not submitted in full, as well as data or other information required for registration, or it was made contrary to the existing prohibitions "(clause 3 of Resolution No. 23).

The Civil Code of the Russian Federation twice allows for the opportunity to legally conduct business without registration, both for citizens and for legal entities. So, in the cases provided for in paragraph 4 of Art. 23 of the Code, “a citizen carrying out entrepreneurial activity without forming a legal entity in violation of the requirements: (on registration. - Auth.) Does not have the right to refer to the transactions concluded by him that he was not an entrepreneur. The court may apply to such transactions rules: (Civil Code of the Russian Federation. - Auth.) on obligations associated with the implementation of entrepreneurial activities. "

It should be noted that the norm of Art. 198 of the Criminal Code of the Russian Federation (it deals with tax evasion from individuals) is formulated on the basis of the same principle, that is, the subsequent legitimation of illegal actions and the application of a special regime of legal regulation to the legal relations that have arisen.

Fixing in par. 1 p. 3 art. 49 of the Civil Code of the Russian Federation, the provision on the acquisition by a legal entity of general legal personality in full from the moment of its creation, the legislator admitted the possibility of the existence of "backlash". At least five days must pass from the moment the company was established until the moment of its state registration and making an entry in the Unified State Register of Legal Entities. This is the term of registration of legal entities. This exception cannot be neglected. Illegal business must be truly illegal. In addition, exceptions are special norms - both in relation to the norms on state registration of legal entities and IPBOYUL, and in relation to the norms of criminal law (for example, in relation to the norm contained in Art. 171 of the Criminal Code of the Russian Federation).

There is one more nuance: the commercial activities of companies that own property on the basis of the right of economic management and operational management, as well as non-profit organizations that do not distribute profits between the participants, but in the course of their activities they extract it with enviable consistency. On this issue, both the Criminal Code of the Russian Federation and the Plenum of the Armed Forces of the Russian Federation are silent. Emphasis with reference to paragraph 1 of Art. 2 of the Civil Code of the Russian Federation for the systematic receipt of profit from activities (clause 1 of Resolution No. 23) does not solve this problem. It remains unclear at what point the "systematic" begins, given that entrepreneurial activity is of a continuing nature.

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

The interpretation by the Plenum of the RF Armed Forces of the legal qualification of the activities of a legal entity possessing special legal capacity and, therefore, incapable of conducting other activities, except for the one for which it was created, as activities without registration or as activities without a license (clause 6 of Resolution No. 23). Here the Plenum contradicts itself: clause 6 of Resolution No. 23 contradicts clause 3 of the same resolution, expanding the content of the concepts of "activity without registration" and "activity without a license". It seems that in this case the Plenum of the RF Armed Forces should have used the right to interpret the norms of law and give a broad interpretation not to these concepts, but to the concept of "illegal business". The activity of an already established subject of law and entrepreneurial activity outside the limits of exclusive competence can in no way be recognized as activity without registration.

Responsibility: criminal, tax, administrative

If a person conducts business without registration (Article 171 of the Criminal Code of the Russian Federation), the state is not able to establish for certain the amount of his income - the taxable base and calculate the amount of taxes or fees. Registration is carried out by the Federal Tax Service of the Russian Federation (Article 2 of the Federal Law of 08.08.2001 N 129-FZ). The Tax Code of the Russian Federation provides for administrative liability for violation of the deadline for registration with the tax authority (Article 116 of the Tax Code of the Russian Federation) and evasion from it (Article 117 of the Tax Code of the Russian Federation). Article 14.1 of the Code of Administrative Offenses of the Russian Federation, establishing administrative responsibility for conducting business without state registration or special permission (license), duplicates the provisions of the Tax Code of the Russian Federation (in particular, clause 1 of Article 117 of the Tax Code of the Russian Federation).

It should be borne in mind that the Code on Administrative Offenses of the Russian Federation deals with administrative responsibility for carrying out entrepreneurial activities without 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 registration with the tax authority as a subject of taxation (taxpayer). This circumstance is due to the application of various measures of administrative responsibility in the event that a person commits one 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 of a material nature (the material composition of the offense is a crime). A prerequisite for its application is damage of a certain amount or illegal extraction of income in a certain amount. The administrative-legal norm is of a formal nature (the formal composition of the offense) and therefore does not require the establishment of the fact of causing damage. A formal violation of a legal prescription is enough (clause 13 of the resolution of the Plenum of the RF Armed Forces of October 24, 2006 N 18).

Unfortunately, the Presidium of the RF Armed Forces ignores a problem that is very important for the practical activities of both law enforcement and judicial authorities: the delimitation 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 question of which branch of law is to be applied to resolve a particular incident is always relevant and insoluble. Therefore, each time it is solved differently. And the scanty amount of damage set as the lower limit for the application of the norm of criminal law, on the one hand, makes it nominal, and on the other hand, it gives a wide scope for abuse, creating a situation in which one person is brought to administrative proceedings for the same actions. , and the other - to criminal liability. Moreover, for the damage caused in the amount of 250,000 rubles and 1 kopeck, this person does not always receive a penalty in the form of a conditional measure. By the way, a third person can get off with a slight fright in general, having received a court decision to recover some amount from him.

In the topic of "illegal business" there is one more issue that needs to be disclosed. Namely - about qualifications under Art. 171 and 199 (198) of the Criminal Code of the Russian Federation. On the one hand, illegal business (Art. 171 of the Criminal Code of the Russian Federation) is a general rule in relation to tax evasion from an organization (Art. 199 of the Criminal Code of the Russian Federation) or from an individual (Art. 198 of the Criminal Code of the Russian Federation). Therefore, when establishing the fact of tax and (or) tax evasion, the actions of the person must be qualified under Art. 198 or Art. 199 of the Code in order to avoid the appointment of double punishment for the same action.

On the other hand, the content of the norm formulated in Art. 171 of the Criminal Code of the Russian Federation, significantly narrows the scope of the concept of "illegal business". This does not allow to define these compositions as general and special in relation to each other, that is, the volume of one composition does not overlap with the volume of another. In addition, the subject composition of legal relations in these cases differs significantly: in cases of tax evasion and (or) fees, one of the parties to the legal relationship is the fiscal authorities, and in the case of illegal entrepreneurship - the management bodies of special competence, not related to fiscal, as well as a fiscal body in the implementation of state registration and maintenance of a unified state register. Consequently, if there are signs of corpus delicti, provided for in Art. 171 and 198 (199) of the Criminal Code of the Russian Federation, they should be classified in aggregate. This is confirmed by paragraph 2 of Resolution No. 23, in which the Plenum of the RF Armed Forces indicates how to qualify the actions of an individual who has acquired property and rents it out without paying taxes.

E.V. Semyanov,
MGKA, Candidate of Law sciences