Art. 171 of the Criminal Code "Illegal entrepreneurship": comments and features
Legislation provides for different types of liability forillegal business. Art. 171 of the Criminal Codepunishment is imposed for an activity without registration or permission (if such is required). The main sign of a crime is the presence of damage to organizations, individuals, the state, or making a profit. As indicatedst. 171 of the Criminal Code, incomeor harm should be major. Consider the rate in more detail.
Art. 171 of the Criminal Code: corpus delicti
Doing business without registration or without a license, when it is mandatory, if it caused damage to the state, organizations, citizens, or was associated with profit on a large scale, entails:
- Monetary collection up to 300 tons. P. or equal to the salary / amount of other income for 2 years.
- Up to 6 months arrest.
- Up to 480 hours of compulsory work.
If the above actions are committed by an organized group or are associated with making profits on a particularly large scale, the guilty party faces:
- Fine 100-500 thousand. Rub. or amounting to the amount of other income for 1-3 g.
- Forced work.
The last two penalties are imputed for up to 5 years. At the same time, a judge may add a fine of up to 80 thousand rubles to imprisonment. or amounting to the amount of other income for six months.
Art. 171 of the Criminal Code of the Russian Federation in a new editionestablishes penalties for activities that may in principle be registered. Explanations on this issue gave the sun. In one of the judgments, the court indicated that in order to impute a citizenillegal business (article 171 of the Criminal Code of the Russian Federation), compositionhis actions must contain the signs specified in the Civil Code. In Art. 2 of the Code reveals the definition of the business entity. In particular, it is indicated that entrepreneurship is aimed at systematically receiving income from the use of property, the sale of products, the provision of services or the production of work. Such activities are carried out independently at their own risk of a person registered as an SP in the prescribed manner.
In some cases, a person who has not been registered and has not received the status of individual entrepreneur acquires residential or non-residential premises for his own needs, receives it under contracts, including donations, as well as an inheritance, but due to the lack of need to use the area leases it. Accordingly, a citizen receives a certain profit from this transaction. However, in this casecomposition of art. 171 of the Criminal Code is missing. If the specified subject has evaded from making obligatory contributions to the budget from the profit, his actions, if there are relevant grounds, qualify according to the Code of Code 198. If a citizen has led a prohibited activity, responsibility comes directly for them. For example, it could be the sale of weapons, human trafficking, the production of drugs, psychotropic compounds, their analogues, the organization of gambling (st. 171.2 of the Criminal Code) and so on. In those situations when a citizen, pursuing the goal of making a profit, conducts illegal economic activity, for which other norms of the Code establish punishment, the additional qualification of the norm under consideration is not carried out.
Present inOf the Criminal Code of the Russian Federation, article 171establishes responsibility for the initiative, independent activities carried out by a person at his own risk, aimed at systematically extracting profits when using property, providing services, working, selling products on unlawful grounds.
Forms of violations
Illegal activities in the field of entrepreneurship can be expressed in:
- No registration or special permission.
- Provision of false information to the supervisory authority.
- Violation of licensing conditions and requirements.
Act specified by the first partst. 171 of the Criminal Code,takes place when the subject is:
- Conducts activities without creating a legal entity or forms a commercial enterprise without going through the established registration procedure.
- I submitted the documents to the registering authority, but began work without waiting for the issuance of the certificate.
- Received a refusal to state registration. It does not matter whether the decision of the authorized body was legal or illegal. If a subject conducts an activity whose registration was denied to him, he may be involvedaccording to art.171 of the Criminal Codeto responsibility.
To establish a violation, the penalty for which providesst. 171 of the Criminal Code, it is necessary to identify the fact that there is no record in the Unified State Register of Legal Entities or EGRIP on the formation of a legal entity or whether a citizen receives the status of an individual entrepreneur or the presence of a mark on the liquidation of an organization or the termination of an individual’s work Under the conduct of activities in violation of the rules of state registration should understand the work of the entity who was aware of the failure to register the registration procedure, which, in turn, gives grounds for its recognition as invalid. For example, the documentation was not fully submitted, prohibitions were not met, etc.
Regulations set a list of works, the production of which without a permit is not allowed. The right to conduct activities subject to licensing arises from the moment of receipt of the necessary document, and ceases when it is suspended, canceled or expires. Entrepreneurship in the absence of a permit occurs in cases where a person has started a job:
- Without contacting the competent authority authorized to issue the document.
- After filing the application and documents, but before receiving a response.
- After suspension, cancellation, expiration of the permit.
- In several areas of similar content, but has a license for only one of them.
- By permission granted to another subject.
As explained by the Plenum of the Supreme Court, if the Federal Law permits the conduct of activities exclusively under a license, but does not establish the conditions and order, and the entity, in turn, began work without obtaining permission, its actions, coupled with extracting large profits or harming the state, other organizations or citizens qualify for the consideredst. 171 of the Criminal Code. According to lawyers, this approach can not be called indisputable and flawless. Experts explain their position by the fact that, in addition to the guilt of the subject conducting activities in violation of the rules, there is a fault of the authorized bodies that are obliged to regulate the conditions for obtaining permission, but have not done so. It should be said about one indication given by the sun. The court noted that if the Federal Law excludes from the list of types of activities subject to licensing the corresponding type of work, there are no signs of a crime in the actions of the subject established by Art. 171.
In practice, there may be cases when regional authorities adopt a regulatory act on issues related to the licensing of certain types of work, going beyond their competence, in violation of the Federal Law, or when legal regulation is related to the joint jurisdiction of the Russian Federation and the subject. In such situations, a person who carried out activities without a permit or received it according to the established rules, but allowing deviations from the requirements and conditions, cannot be held accountable.
The deed is considered completed in the event of direct damage to the state, organizations, citizens, or upon receipt of large profits. The corresponding evaluation concepts are disclosed in a note to Article 169 of the Criminal Code. Major damage / size is, according to the regulations, an amount greater than 250 thousand rubles. Explanations on this issue are given in the plenary Resolution of the Supreme Court. The court points out that as income under the application of Art. 171 of the Criminal Code, the revenue from the sale of services, products or works without deducting the costs incurred by the entity in connection with the implementation of activities.
It is characterized by guilt in an intentional form.A person brought to justice may be a citizen who has reached 16 liters. In addition, the subject of a crime may be an individual who, in view of his official position, temporarily, specifically or permanently performed duties related to the management of the organization, in fact exercised management functions. This may be the director of the company, another employee who has the right to act without a power of attorney on behalf of the company. If the subject is in an employment relationship with an individual entrepreneur or legal entity who conducts activities with violation of the state registration procedure or without a license, if it is obligatory, with non-compliance with the conditions and requirements established by the permit, the employee’s performance of his duties arising from the contract does not fall under the provisions of the norm under consideration . The exceptions to this rule are persons exercising managerial functions (by special authority, temporarily or permanently).
They are the receipt of a particularly large profit and the act committed by an organized group. The first concept is disclosed in Art. 169. Profits exceeding the amount of 1 million rubles are considered particularly large.It should be said that the norm underwentchanges. Art. 171 of the Criminal Codedoes not contain the third qualifying attribute that was previously available.
Specificity of qualifications in aggregate
A number of problems arising from the identification of signs of other crimes in the act were explained by the Plenum of the Supreme Court. According to the court, if, in carrying out an activity, a person unlawfully uses a trademark belonging to another entity, the name of the place of origin of products, service mark, similar means of identifying homogeneous products and in the presence of other circumstances, the norms 180 and 171 in total should be applied. The same rule applies in other cases. For example, if during the work of an enterprise, in violation of the rules for registration or licensing, there is a release, purchase, transportation, storage for subsequent sale or sale of unmarked products, excisable goods, subject to marking with signs protected from counterfeit, made in large or especially large sizes, the actions of a person are additionally qualified under art.171.1 of the Criminal Code. If the activity was related to the manufacture, transport,the sale of products, the provision of services, the performance of work that does not comply with safety requirements, responsibility comes under the commented rate and art. 238 of the Code. If the work of the enterprise is accompanied by an unauthorized release, use, marketing, falsification of a state-recognized assay stamp, the act is qualified additionally according to art. 181.
In practice, quite often there were difficulties in qualifying violations of NK. An explanation of this was given by the Armed Forces. The court pointed out that the actions of a subject recognized in the jurisdiction of illegal entrepreneurship as guilty and not paying fees and taxes on the profit gained from such activities are fully covered by the features established in art. 171 of the Code. In this case, money, property, other material assets that were acquired in the framework of this act, will act as evidence in the case in accordance with the provisions of Art. 81 of the CPC (part 1, paragraphs 2 and 2.1). As indicated by part 3 of paragraph 4 of this article, these items are subject to seizure in favor of the state with the justification of such a decision in a court sentence.The crimes specified in the first part of the commented rule are considered to be acts of minor gravity, in part 2 - moderate.
Entrepreneurship in the Russian Federation is a fairly large-scale field of activity. The work of a large number of diverse firms is controlled today quite tightly. Unfortunately, the number of unscrupulous business entities is still large. Responsibility established by law is not only aimed at curbing acts in the economic sphere. Punishments are educational and warning.