Illegal business activity of the Criminal Code of the Russian Federation. Consequences of illegal business activities

The legality of entrepreneurship is a complex concept due to the imperfection of regulation in this area.

If there is illegal business activity on the part of business owners, Article 171 of the Criminal Code of the Russian Federation will determine the penalties.

Let's consider the features of violations and the types of liability to which an entrepreneur can be held.

In addition to avoiding punishment under criminal and other articles, there are a number of objective reasons for conducting legal business:

An entrepreneur doing business legally can enjoy the protection of government agencies.

It is much easier to run a legal and registered business than to come up with various schemes and ways to circumvent the law.

Problems may arise for entrepreneurs when they have not registered their activities. It is necessary to register as an individual entrepreneur or legal entity.

Otherwise you have to pay a fine. It can be up to 2 thousand rubles.

If a businessman works without a license, when it is required, a fine of up to 2.5 thousand rubles will follow.. This applies only to individual entrepreneurs who are individuals.

Officials are also required to pay a fine of about 5 thousand rubles. If the violator is a legal entity, the amount will be higher, it is 40-50 thousand rubles.

If a violation is proven, private entrepreneurs and legal entities may also face confiscation of manufactured products. Such decisions are made on an individual basis, depending on the type of activity and other factors.

In cases where activities are carried out in violation of license requirements, a warning is issued.. You can also receive a fine of up to 2 thousand rubles - in the case of private entrepreneurs.

Officials can receive up to 4 thousand rubles, and legal entities risk paying up to 40 thousand rubles.

There is a risk of receiving a fine for gross violations related to licensing. How rough they are is decided on an individual basis. This largely depends on the type of activity.

Sometimes a decision is made to temporarily suspend activities. The period is up to 90 days. The most serious consequences may affect legal entities. They face a fine of 100-200 thousand rubles.

Tax liability

An entrepreneur falls under tax sanctions when tax payment deadlines are violated. Also, individual entrepreneurs and organizations may receive a fine of 10% of the income received - during the period when the activity was carried out.

All this is possible in case of various violations of the tax payment procedure. There are also penalties for non-payment and underpayment of taxes. They constitute 20 or 40 percent of the unpaid tax amounts.

A fine for illegal business of individuals is easy to obtain under an article of the Criminal Code of the Russian Federation. Other measures are also provided.

Entrepreneurs and firms will have to answer for activities when they were carried out without registration and license, and caused great damage to a citizen, organization or state. Also, those who have extracted large amounts of income face criminal liability.

Violators face a fine of up to 300 thousand rubles, and the entrepreneur’s income for a period of up to 2 years may also be recovered. The court may also take other measures: force a person to perform compulsory work for up to 480 hours. Arrest for up to 6 months is also possible.

Criminal liability is also provided for acts committed by an organized group. If income was generated on a particularly large scale, the fine may be 500 thousand rubles. Entrepreneurs may also be fined an amount equal to 3 years' income.

The harshest outcome is imprisonment for up to 5 years + depending on the situation, the businessman may be fined:

major damage is considered to be an amount of 1.5 million rubles;
especially large damage - more than 6 million rubles.

Illegal entrepreneurship under Article 171 of the Criminal Code of the Russian Federation is punishable depending on a number of factors. One of them is systematicity. If the activity was carried out at least 2 times a year, it is already recognized as systematic.

In the case where a citizen provides a service once a year, the activity will not be considered systematic. Another factor is making a profit: if a citizen does not receive it, then his actions are not entrepreneurial.

The composition and types of crimes differ, so the preventive measures also vary. And, if an entrepreneur finds himself in such a situation, he needs a good lawyer who can immediately determine what threatens the business.

But it is better to conduct legal activities in order to avoid serious consequences, including imprisonment.

How to prove that the activity was legal? There are a number of situations when entrepreneurs have problems, and they did not even suspect the illegality of their actions.

This happens due to lack of legal knowledge; also, novice business owners can succumb to the provocations of partners and contractors.

In this case, it is necessary to demonstrate maximum transparency of your business.

Sectors of the economy with complex regulation

The greatest number of problems arise in areas that are poorly regulated by the state.

This includes construction, as well as organized transportation of passengers and cargo, small trade, and the provision of various household services. This also includes garage car services, real estate rental, and various courses.

Individual entrepreneurs and organizations are rarely registered in these sectors; people do not work for hire. Construction projects often involve third-party contractors.

The situation for entrepreneurs is calm as long as problems do not arise (technical violations, disputes with tenants, etc.), so it is better to register for your protection.

If you can turn a blind eye to the sale of handicrafts from a private craftsman, then a noisy cafe on the ground floor of a private house requires attention.

Illegal transactions of funds on a large scale must be suppressed by law.

The problem is that such businessmen can be engaged in construction and other activities that require enormous responsibility.

The lack of licenses and certificates leads to problems: who will be to blame for the poisoning of a cafe visitor, the collapse of structures or broken goods from an unregistered store?

Where to report illegal business activity if you witness it? There are two basic authorities:

Economic Security Administration;
Department of Economic Security.

You can also contact the police, prosecutor's office, or send a complaint to the tax authorities. Often citizens decide to attract the attention of public organizations.

Before you complain, you need to make sure that the business is actually illegal.. The application must be confirmed. You can independently introduce yourself as a client of this company and ask for a certificate (which will be denied).

Doubtful receipts for different amounts also become confirmation. You can provide a copy of the contract, as well as various photographs and videos.

There are no specific samples; you just need to correctly indicate all the necessary data. At the top right you need to indicate the addressee, then write “Application” in the middle.

The text must indicate:

a person who breaks the law;
a brief description of the activity;
duration and frequency, specific working hours;
request for action.

Evidence is also included if available. Now we propose to understand the peculiarities of applying to specific authorities.

Tax office

The Federal Tax Service does not have the authority to fight illegal business, since the main task is to collect taxes.

Therefore, it is worth sending complaints here only related to violations of tax laws. And only then the matter gets underway.

This is where criminal complaints are made. It is especially important to do this when the applicant first contacted the police, where the case was not considered, and what will happen next is unclear.

An employee will help you fill out the application; there is also no specific sample here.

In order for the violator to bear responsibility for illegal business, it is necessary to first wait for the application to be considered. This is done within 30 calendar days.

We figured out what illegal business activity is. The legislative framework in this area in 2019 is imperfect, so it is possible to attract only serious violators with impressive turnover and serious violations.

We are talking not only about an unregistered business, but also about the lack of licenses, as well as turnover that goes “by” the official reporting.

Illegal actions must be stopped in order to ensure the safety of citizens and put entrepreneurs of different levels on an equal footing before the law.

1. Carrying out business activities without registration or without a license in cases where such a license is required, if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale, -

shall be punishable by a fine in the amount of up to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to four hundred 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) expired

shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by forced labor for a term of up to five years, or by 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. Lost power.

Commentary on Article 171 of the Criminal Code of the Russian Federation

1. The crime encroaches on the legal procedure for carrying out business activities. The concept of entrepreneurial activity and the procedure for its implementation were disclosed in the commentary to Art. 169 of the Criminal Code.

When analyzing the signs of a crime under Art. 171 of the Criminal Code, one should take into account the recommendations of the Plenum of the Supreme Court of the Russian Federation, given in connection with issues that have arisen in judicial practice, in Resolution No. 23 of November 18, 2004 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of funds or other property , acquired by criminal means" // BVS RF. 2005. N 1. S. 2 - 6.

2. Crime is characterized by five forms of criminal activity. All these actions are considered criminal if at least one of two conditions is present: if these actions caused major damage to citizens, organizations or the state or were associated with the extraction of income on a large scale. Performing the same actions in the absence of these conditions entails administrative liability. The concept of major damage or large-scale income is given in the note to Art. 169 Criminal Code - over 1.5 million rubles. Income should be understood as proceeds from the sale of goods, works, and services during the period of illegal business activity without deducting expenses incurred by the person related to the implementation of illegal business activity. When calculating the amount of income received by an organized group, one should proceed from the total amount of income received by all its participants (clause 12 and part 1 of clause 13 of the said Resolution).

3. Carrying out business activities without registration, as explained by the Plenum of the Supreme Court of the Russian Federation, will be 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 a legal entity or the acquisition by an individual of the status of an individual entrepreneur (p 3 of the said Resolution). In accordance with the norms of civil law, any entrepreneurial activity of citizens and legal entities must be registered (Articles 23, 50, 51 of the Civil Code). State registration is the legal recognition of entrepreneurship in a certain organizational and legal form: as an individual entrepreneur, a peasant (farm) enterprise or a legal entity - a commercial organization (the requirements imposed by law when registering business activities were discussed in the commentary to Article 169 of the Criminal Code) . Article 171 of the Criminal Code refers to those cases when persons, without good reason, avoid registering their activities, of course, if their activities can be registered. In cases where persons are engaged in economic activities prohibited by law, which cannot be registered, liability does not arise under Art. 171 of the Criminal Code, and under other articles. For example, the illegal manufacture of weapons, ammunition, explosive devices, components, explosives entails criminal liability under Art. 223 CC; illegal production of narcotic drugs or trade in them - under Art. Art. 228 - 228.2 of the Criminal Code (clause 18 of the said Resolution).

Do not entail criminal liability under Art. 171 of the Criminal Code of the actions of a person not registered as an individual entrepreneur, when he acquired residential premises or other real estate for personal needs or received it by inheritance or under a gift agreement and, having rented it out or rented it, received income, including large or especially large size. The actions of such a person contain signs of a crime under Art. 198 of the Criminal Code (clause 2 of the said Resolution).

4. Carrying out business activities in violation of registration rules means that a legal entity or individual entrepreneur, having a registration certificate for one type of business activity, carries out another business activity either in a different place or in a different organizational and legal form. Carrying out business activities in violation of the rules of registration should also be considered those cases when, during registration, violations were committed knowingly for the culprit, giving grounds for declaring the registration invalid, for example, documents were not submitted in full. In the event that the registration certificate has expired, the first form of criminal activity will occur.

5. Submission to the body that registers legal entities and individual entrepreneurs of documents containing deliberately false information indicates that the registration was obtained fraudulently, the registration body was misled by the submitted documents, the falsification of which was discovered later, for example, a document payment of the registration fee turned out to be fake.

6. Carrying out business activities without a special permit (license) means that a person who has a registration certificate for the right to conduct business activities has not received a special permit (license) for the type of economic activity that he carries out when such a license is required (). A license is an official document that gives an entrepreneur the right to engage in a certain type of economic activity for a specified period, subject to the conditions for carrying out this activity. The licensing procedure is established by Federal Law No. 128-FZ of August 8, 2001 “On licensing of certain types of activities” (as amended by the Federal Law of July 2, 2005). The law classifies as licensed types of activities those types of activities, the implementation of which may entail damage to the rights, legitimate interests, morality and health of citizens, the defense of the country and the security of the state. The law defines the general principles of licensing, indicating specific types of business that are licensed only at the federal level (weapons trade, all operations with precious metals and stones, with narcotic and psychotropic substances, etc.), as well as types of activities for which permission to carry out issued by executive authorities of the constituent entities of the Russian Federation (real estate, medical and veterinary activities, operation of gas stations, etc.). Licensing bodies can also be local governments, for example, in cases of issuing a license for the right to conduct educational activities (Clause 7, Article 33 of the Federal Law “On Education”) or for the right to retail trade in alcoholic products (Article 18 of the Federal Law “On State regulation of the production and circulation of ethyl alcohol and alcoholic products"). Licenses must be obtained by registered entrepreneurs for each type of activity. (On the licensing procedure, see also the commentary to Article 169 of the Criminal Code of the Russian Federation.)

The actions of a person engaged in private medical practice or private pharmaceutical activities without the appropriate special permit (license), if they negligently caused harm to a person’s health or death, must be qualified under Art. 235 CC. In the case where such actions did not entail the indicated consequences, but were associated with the extraction of income on a large or especially large scale or caused major damage to citizens, organizations or the state, then they should be qualified under the relevant part of Art. 171 of the Criminal Code (clause 5 of the said Resolution).

7. The crime is committed with direct intent. The motives are not specified in the law, but they are always selfish.

8. The subject of the crime is a special one: the head of a legal entity or an individual entrepreneur if they evade obtaining a license, as well as any persons carrying out business activities without state registration. It should be borne in mind that persons (with the exception of the head of an organization) who are in labor relations with an organization or with an individual entrepreneur carrying out business activities without registration or without a license are not subject to criminal liability under Art. 171 of the Criminal Code, if they performed the duties arising from the employment contract (see paragraph 11 of the said Resolution). Carrying out business activities without state registration or without a special permit (license) or in violation of the conditions provided for by a special permit (license) by a citizen without causing major damage entails administrative liability (). The head of a legal entity or an individual entrepreneur who has submitted documents containing knowingly false information to the registration authority is liable under Part 4 of Art. 14.25 Code of Administrative Offences.

9. Part 2 art. 171 of the Criminal Code contains two qualifying circumstances: a) commission of a crime by an organized group; b) generating income on a particularly large scale. The concept of an organized group is given in Part 3 of Art. 35 of the Criminal Code. A particularly large amount of income is defined in the note to Art. 169 of the Criminal Code: it amounts to more than 6 million rubles. When calculating the amount of income received by an organized group, one should proceed from the total amount of income (without deductions for expenses incurred) received by all its participants, and qualify such actions under paragraphs “a” and “b” of Part 2 of Art. 171 of the Criminal Code (clause 13 of the said Resolution).

10. If, in the course of illegal business activities, actions are committed that contain signs of other crimes, for example, crimes provided for in Art. 171.1 (production, acquisition, storage, transportation for marketing purposes or sale of unmarked goods and products), 181 (violation of the rules for the production and use of state hallmarks) or 238 of the Criminal Code (production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet safety requirements) (clauses 15 and 16 of the said Resolution), then such actions should be qualified as a set of crimes under Art. 171 and relevant articles of the Criminal Code of the Russian Federation. The exception is Art. Art. 198 and 199 of the Criminal Code, since non-payment of taxes or fees on income received as a result of illegal business activities is covered by the features of Art. 171 of the Criminal Code (clause 16 of the said Resolution).

The direct object of this crime is the procedure established by law for carrying out business activities.

The objective side is characterized by the following alternative actions:

1) carrying out business activities without registration.

Implementation of entrepreneurial

activities without registration will take place only in cases where the Unified State Register of Legal Entities and the Unified State Register of Individual Entrepreneurs does not contain a record of the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur or contains a record of the liquidation of a legal entity or termination of the activities of an individual as an individual

entrepreneur;

2) carrying out business activities without a special permit (license), when such permission is required. When deciding whether a person’s actions contain signs of carrying out business activities without a special permit (license) in cases where such permission is mandatory, the courts should proceed from the fact that certain types of activities, the list of which is determined by Federal Law of August 8, 2001 No. 128 -FZ “On licensing of certain types of activities” can only be carried out on the basis of a special permit (license). The right to carry out activities for which a special permit (license) is required arises from the moment the permit (license) is received or within the period specified therein and terminates upon expiration of its validity (unless otherwise provided), as well as in cases of suspension or cancellation permits (licenses) (clause 3, article 49 of the Civil Code of the Russian Federation).

If a legal entity that has special legal capacity to carry out only certain types of activities (for example, banking, insurance, auditing) is also engaged in other types of activities that it is not entitled to engage in in accordance with the constituent documents and the existing license, then such actions associated with unlawful carrying out other types of activities should be considered as
illegal business activity without registration or illegal business activity without special permission (license) in cases where such permission is required.

In accordance with the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 No. 23 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of funds or other property acquired by criminal means” when deciding whether a person’s actions contain signs of criminal conduct crime under Art. 171 of the Criminal Code of the Russian Federation, courts should find out whether these actions correspond to those specified in i. 1 tbsp. 2 of the Civil Code of the Russian Federation, the characteristics of entrepreneurial activity, i.e. activities aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services, which is carried out independently at one’s own risk by a person registered in the manner prescribed by law as an individual entrepreneur.

In accordance with Art. 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur, and the head of a peasant (farm) enterprise - from the moment of state registration of a peasant (farm) enterprise. According to Art. 51 of the Civil Code of the Russian Federation, a legal entity is subject to state registration.

In cases where a person not registered as an individual entrepreneur acquired residential premises or other real estate for personal needs or received it by inheritance or under a gift agreement, but due to the lack of need to use this property, temporarily leased it or rented it out and as a result of such a civil transaction received income (including in a large or especially large

size), what he did does not entail criminal liability for illegal business. If the specified person evades paying taxes or fees on the income received, his actions, if there are grounds for this, contain elements of a crime,

provided for in Art. 198 of the Criminal Code of the Russian Federation.

According to the design of the objective side, the crime under consideration is formal and material. If the crime is characterized by causing major damage, then such elements should be considered material, and it ends from the moment the major damage is caused. If the crime is characterized by the extraction of income on a large scale, then such a crime should be considered formal, and it ends from the moment such income is received.

Income should be understood as proceeds from the sale of goods (work, services) during the period of illegal business activity without deducting expenses incurred by the person related to the implementation of illegal business activity.

However, when crimes are classified as illegal entrepreneurship, determining the amount of income received raises certain difficulties. This is due, first of all, to the fact that in the theory of economics and jurisprudence, income is understood differently.

In economic theory, income is understood as all proceeds from the sale of goods and services without taking into account costs. However, in law this concept of income was retained in relation to income tax. In other cases, income means profit, i.e. cash receipts received as a result of business activities in part exceeding expenses.

In the criminal legal sense, the concepts of “profit” and “income” are identical, which is reflected in the specialized literature 1.

However, on December 17, 1998, in the Leonov case, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation indicated in its ruling that the income provided for in Art. 171 of the Criminal Code should be defined as the difference between the profit received from business activity and the expenses incurred as a result of this activity.

This approach to solving this issue has caused an ambiguous attitude in the theory of criminal law. Many authors (A.E. Zhalinsky, N.A. Lopashenko, T.D. Ustinova, etc.) in their interpretation agreed with the concept of income from illegal business activities given by the Supreme Court of the Russian Federation. Others, for example, P.S. Yann, S. Vasendin, B.V. Volzhenkin, did not agree with this interpretation.

P.S. Yann motivated his rejection of this position by referring the Supreme Court of Russia to tax legislation, which, in his opinion, is so contradictory that it allows, by turning to it, to argue for a decision that is directly opposite.

B.V. Volzhenkin, taking into account his understanding of the danger of illegal business activities, states: “All business is controlled by the state by establishing state registration, licensing of certain types of activities, and establishing a number of conditions in the license. The danger is not
enrichment of the entrepreneur, not his receipt of profit, but the fact that he evades established control” 1 .

S. Vasendin considers the point of view, where income is understood as the entire total income received from illegal entrepreneurship, to be more justified. Otherwise, in his opinion, the onset of liability may be made dependent on the economic efficiency of the activities of a particular enterprise or entrepreneur.

Despite the debate that has arisen in the theory of criminal law, the Plenum of the Supreme Court of the Russian Federation in its Resolution No. 23 of November 18, 2004 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of funds or other property acquired by criminal means” indicated that what is under income in Art. 171 of the Criminal Code of the Russian Federation should be understood as revenue from the sale of goods (work, services) during the period of illegal business activity without deducting the expenses incurred by the person related to the implementation of illegal business activity. The Supreme Court adopted a definition of income close to that used for tax purposes (Article 249 of the Tax Code of the Russian Federation: “income from sales is the proceeds from the sale of goods (work, services) both of one’s own production and those previously acquired, and proceeds from the sale of property rights).

When calculating the amount of income received by an organized group of persons, one should proceed from the total amount of income received by all its participants.

The current criminal legislation does not contain instructions as to what damage may be expressed in
from illegal business. There is no unambiguous understanding of damage in illegal business in the legal literature. Given this crime, along with damage to the state in the form of non-payment of duties, fees, taxes, the authors of various publications propose to consider damage in the form of harm to the health of citizens, their property, and lost profits by other entrepreneurs 1 .

Some authors consider the proposed interpretation of damage in illegal entrepreneurship to be unfounded, since, in their opinion, it is broad in nature. From their point of view, only non-receipt of taxes to the relevant budget can be included in the structure of illegal entrepreneurship as one of the consequences of this crime.

Commenting on this opinion, it should be noted that in case of illegal business, damage is expressed, as a rule, in the form of non-receipt of taxes to the budget, but this does not exclude its expression in causing harm to the health of citizens or their property. For example, this harm may occur as a result of consumption or use of goods that were the product of illegal entrepreneurship and have design, formulation or other defects. In these cases, the preliminary investigation authorities will need to establish a cause-and-effect relationship between the listed consequences and the illegal business committed.

Depending on the amount of income generated during illegal entrepreneurship,

delimitation of this criminal act from
administrative offense, but how to qualify an act when illegal business activity was stopped at the moment when its subject did not yet intend to stop his actions, but the income he received was less than one and a half million rubles?

When establishing signs of the objective side of the crime in question, in addition to analyzing the types of illegal business specified in the disposition of Art. 171 of the Criminal Code, special attention should be paid to the fact that the implementation of illegal business activities, by their nature, is a continuing crime. The moment of the end of ongoing crimes is the cessation of criminal activity 1. The objective side of Art. 171 of the Criminal Code of the Russian Federation is designed in such a way that a single crime is a whole system of sequential actions.

In relation to such cases, the theory of criminal law has developed an approach according to which qualification is carried out depending on the purpose of the ongoing crime, specificity or

lack of specificity of the intention of the perpetrator.

According to some scientists, the actions described in the above example can be assessed as an attempted crime (Part 3 of Article 30, Article 171 of the Criminal Code of the Russian Federation), but only if the preliminary investigation authorities manage to prove the specific amount of income that intended to extract the subject of the crime, or the amount of income that would be
recovered if illegal business activity had not been stopped.

The analysis of the studied criminal cases also indicates that suppressed illegally carried out business activities, in which its subject has generated income on a large scale, in some cases are qualified as an attempt on illegal business committed with the extraction of income on a particularly large scale.

According to N.F. Kuznetsova, in the case of illegal entrepreneurship, until the moment of generating income on a particularly large scale, the previous actions of a person can be regarded by law enforcement agencies either as a completed crime (if there is a large amount of income) or as an attempted crime 2.

From our point of view, the last option of qualification is possible only if the preliminary investigation authorities prove that the guilty person intended to extract income from illegal business on a particularly large scale, then his actions should be qualified as an attempt on illegal business with the extraction of income in especially large size.

To be fair, it should be noted that in the legal literature there is an opinion that it is impossible to commit an attempt on illegal business, due to the fact that this crime is ongoing. In one of the articles L.S. Aistova gives an example from judicial practice when, in her opinion, the actions of the guilty person were incorrectly classified as an attempt on illegal business with the extraction of income on an especially large scale.

B., not being a private entrepreneur, in North Ossetia purchased 8,400 liters of ethyl alcohol from persons not identified by the investigation, with the purpose of resale in other constituent entities of the Russian Federation. To transport barrels of alcohol and trade, B. rented a KamAZ car and hired a driver. B.'s activities were stopped when he managed to sell only 1000 liters of alcohol 1.

It seems that in the above example, the law enforcement officer correctly assessed B.’s actions as an attempt on illegal business with the extraction of income on a particularly large scale. We must not forget that objective imputation is not permissible in domestic criminal law. Despite the fact that the culprit managed to sell 1000 liters of alcohol, his intent was aimed at selling 8400 liters of alcohol.

Law enforcement practice on illegal entrepreneurship is characterized by its

inconsistency. An analysis of criminal case materials shows that in some cases the execution of one large transaction is considered illegal

entrepreneurship, but not in others. There is no unity on this issue in the theory of criminal law. Some scientists believe that making a single transaction with the extraction of income on a large or especially large scale constitutes illegal entrepreneurship, while others criticize this opinion.

Unfortunately, the sign of systematicity has not received a legal interpretation, and practice has not yet developed its firm criteria, which causes many difficulties in applying the provisions of Art. 171 of the Criminal Code of the Russian Federation [C].

Thus, in one of the districts of the Vologda region, K. was convicted of illegal business, having received a large income from the resale of a passenger car. In another district of the same region, on the contrary, the criminal case was dismissed due to the lack of corpus delicti in the actions of P. and L., who received a large amount of income from the resale of a large batch of lumber, since, as the investigator emphasized, the transaction was isolated.

In this regard, the question arises: how to qualify the actions of persons who have made one or two transactions that brought them income on a large or especially large scale?

The answer to the question posed, from our point of view, is contained in the letter of the Ministry of Finance of the Russian Federation dated January 14, 2005 No. 03-05-01-05/3. From the context of this letter it follows that the law connects the need to register an individual as an individual entrepreneur with the implementation of a special type of activity, and not simply with the completion of paid transactions. The mere fact of a citizen making transactions on a reimbursable basis is not enough to recognize a citizen as an entrepreneur if the transactions he makes do not constitute an activity. As criteria for conducting business activities, the Ministry of Finance of the Russian Federation, in particular, indicates the manufacture or acquisition of property with the aim of subsequently making a profit from its use or sale; economic accounting of operations related to transactions; the interconnectedness of all transactions made by a citizen in a certain period of time; stable relationships with sellers, buyers, and other counterparties.

In one of the decisions of the Supreme Court concerning the application of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, establishing administrative responsibility for carrying out business activities without state

registration as an individual entrepreneur, it is clarified that “...individual cases of the sale of goods, performance of work, provision of services by a person not registered as an individual entrepreneur do not form part of this administrative offense, provided that the quantity of goods, its range, volumes of completed works, services provided and other circumstances do not indicate that this activity was aimed at systematically generating profit” 1.

In and. 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 No. 23 states that in cases where

a person not registered as an individual entrepreneur acquired residential premises or other real estate for personal needs or received it by inheritance or under a gift agreement, but due to the lack of need to use this property, temporarily leased it or leased it and as a result of such civil law transaction received income (including in a large or especially large amount), what he did does not entail criminal liability for illegal business.

Thus, the position of the highest court is expressed in the fact that not only a single transaction, but also several transactions made by one person do not create grounds for classifying these actions as illegal entrepreneurship.

This understanding of illegal entrepreneurship seems justified, since Art. 171 of the Criminal Code in its current form aims law enforcement agencies to combat more dangerous types of business activities that cause significant damage to society. Illegal business is not illegal
entrepreneurship in itself, but due to the fact that a person evades fulfilling the requirements for state registration or obtaining an appropriate license. If these requirements were met, entrepreneurship would be legal.

In addition, some entrepreneurs combine illegal types of activities in their legal activities.

entrepreneurship. For example, in some stores that legally sell weapons, you can buy them illegally, homemade ones, etc.

There are cases when individual doctors, on the basis of an inpatient or outpatient department, develop activities to illegally provide paid medical services.

Fraudsters disguised as traditional healers systematically gather huge audiences to conduct, for example, mass healing sessions.

The listed types of activities, with the systematic extraction of profit, according to their substantive characteristics, will fully correspond to the definition of entrepreneurship. They will only not meet the condition of the legality of the actions taken 2.

In our opinion, the described acts should receive a criminal legal assessment according to special norms of criminal law and, at the same time, be qualified in conjunction with the norms of Art. 171 of the Criminal Code of the Russian Federation, if they caused large damage or generated income in an amount not less than large.

It should also be noted that being in an employment relationship with any employer excludes the presence of
actions of a person corpus delicti under Art. 171 of the Criminal Code of the Russian Federation.

One of the district courts of the Oryol region issued a guilty verdict under Art. 171 of the Criminal Code of the Russian Federation in relation to E., who, without a license to carry out transportation by road, entered into an employment agreement with a food processing plant for employment as a driver and, in a car that belonged to him, at the direction of the management of the said enterprise, transported various cargoes.

This sentence was overturned. In its decision, the Presidium of the Oryol Regional Court indicated that E.’s activities in the mentioned enterprise were not independent, since he followed the instructions of the management of the plant for the transportation of goods. He was not responsible and did not risk any shortage or damage to the goods (which, as can be seen from the case materials, during transportation was under the accountability of other persons); the accounting department made various types of deductions from his wages (income tax, contributions to the pension fund) , a schedule was kept for recording his working hours. Consequently, E.’s actions do not contain any signs of entrepreneurship, therefore no special permission (license) for the transportation of goods under such circumstances was required 1 .

Illegal business

Commentary on Article 171 of the Criminal Code of the Russian Federation:

1. The main direct object is social relations in the field of business activity. An additional object is the protected interests of citizens, society and the state. We are talking about actually permitted business activities, and not about types that are prohibited or require special permission (for example, the production of weapons and drugs that are withdrawn from free civilian circulation). For a correct understanding of all issues of criminal liability for crimes in the business sphere, it is necessary to use the explanations of the Plenum of the Supreme Court, given in the Resolution of the Russian Federation of November 18, 2004 N 23 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of funds or other property , acquired by criminal means" (Rossiyskaya Gazeta. 2004. December 7).

2. The objective side of this crime is expressed in illegal entrepreneurship, i.e. in independent activities carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons not registered as subjects of such activity or in violation of established rules. The act can be expressed in the following two forms: carrying out business activities without registration; carrying out business activities without a special permit (license) in cases where such a license is required.

3. The composition by design of the objective side is formal and material. With its formal structure, to recognize a crime as completed, it is sufficient to commit an act in the specified forms, but associated with the extraction of income on a large scale. Income should be understood as proceeds from the sale of goods during the period of illegal business activity without deducting the expenses incurred by the person associated with the implementation of such activity. When major damage is caused to the protected interests of citizens, society or the state, the composition acquires a material construction, but it is necessary to establish a causal connection between illegal business and the damage caused (on the recognition of income and damage as major, see the commentary to Article 169 of the Criminal Code). The specificity of this composition is that illegal actions that do not cause major damage cannot be qualified as an attempt on illegal business, but are considered only as an administrative offense.

4. The subjective side is characterized by an intentional form of guilt. With a formal composition, intent is direct, with a material composition it can be both direct and indirect. The subject is aware that he is carrying out business activities without registration or without a license in cases where it is mandatory, and wants to do so, generating large income; or he is aware of the illegality of his actions, foresees that as a result of his actions, major damage will probably or inevitably be caused to citizens, organizations or the state, and desires the occurrence of these criminal consequences.

5. Subject - a natural, sane person who has reached the age of 16.

6. The qualified composition of illegal entrepreneurship includes two characteristics: its commission by an organized group (see commentary to Article 35 of the Criminal Code) and extraction of income on an especially large scale.

Any state traditionally strictly regulates the conditions under which its citizens and foreigners can engage in entrepreneurial activity, so if you are planning to open your own business, you must know the relevant legislation. Illegal business activities may entail liability commensurate with the scale of the business and the damage that the state received from the actions of the entrepreneur.

The concept of business activities carried out outside the law

To be illegal, an activity must first be entrepreneurial, that is, meet several basic requirements:

carried out independently and at your own risk. A driver or any other employee working for a person conducting business illegally is not subject to any liability. Although in practice the courts often take the opposite position;
have the goal of systematically generating income. A single purchase and sale transaction or the provision of any service for payment does not constitute entrepreneurial activity;
The source of income for an entrepreneur is the use of property, provision of services or sale of goods.

That is why an entrepreneur will be a grandmother who comes to the metro every Monday to sell vegetables from her garden, but there will not be a person who has sold not just one, but several properties that belong to him. If the latter is not a systematic activity of buying and selling, but simply a series of transactions, the seller does not bear responsibility.

According to the law, any person who systematically receives income from any activity can be considered an entrepreneur and be held accountable, including those persons who traditionally do not consider themselves entrepreneurs: freelancers, farmers selling their products, people in creative professions.

Only landlords who rent out unused real estate that belongs to them are exempt from liability for carrying out business activities without registration, although in this case they are not exempt from the obligation to pay personal income tax (this exception is stated in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 18, 2004 No. 23 ). All landlords are exempt from liability, regardless of the method of acquisition, the number of properties and the amount of income received.

Whether a citizen’s activity is entrepreneurial is determined in each case individually. The Plenum of the RF Supreme Court several times pointed out that only systematic activity can be called entrepreneurial, which can be judged by the range of goods sold, its origin, the frequency with which a person engages in trade or provision of services and other characteristics (Resolution of the Plenum of the RF Supreme Court dated October 24. 2006 No. 18).

Also, the Civil Code includes state registration of a legal entity or registration of a citizen as an individual entrepreneur among the criteria defining an activity as entrepreneurial.

But in reality, trade without registration ceases to be an entrepreneurial activity. Failure to comply with the requirements of the law will only entail liability, but will not relieve the entrepreneur of the obligation to answer for the obligations that he assumed while doing business illegally. Therefore, in addition to claims from regulatory authorities, an entrepreneur may receive a summons to court and civil claims from counterparties if his activities caused them damage.

Illegal business activity: liability and possible fines

There may be several violations of the law when conducting business:

lack of registration. Moreover, the moment of state registration is the moment of making an entry about a legal entity or individual entrepreneur (individual entrepreneur), therefore, you cannot engage in business until the registration procedure is completed;
operating without a license when necessary (for example, illegal sale of alcohol);
activities in violation of licensing conditions (administrative liability only).

What type of liability a person will be held to depends on the amount of income received. You should also keep in mind that if law enforcement agencies are interested in you, in addition to liability directly for trade or provision of services without registration, you may also face punishment under other related articles of the Code of Administrative Offenses or even the Criminal Code of the Russian Federation (for example, when combining illegal trade with trade in unmarked goods).

Criminal liability under Art. 171 of the Criminal Code of the Russian Federation

This is the most serious possible consequence of violating the laws on registration of legal entities and individual entrepreneurs and licensing rules. A criminal record closes many doors for a person, including access to credit resources in the same amount.

According to Art. 171 of the Criminal Code of the Russian Federation, it may be qualified to conduct a business without registration or without obtaining a license (when this is a mandatory legal requirement), if this activity caused major damage to the state or third parties or allowed to receive income on a large or especially large scale (this is 250 thousand and 1 million rubles respectively).

The fine for illegal business activity is up to 500 thousand rubles or the amount of the convicted person’s income for a maximum of three years, forced labor for up to 5 years, arrest for up to 6 months, or even imprisonment for up to 5 years. It is quite difficult to prove illegal business activities generating such income, so this article is rarely used. But if law enforcement officers set themselves such a goal, with the appropriate scale of business, the application of Art. 171 of the Criminal Code of the Russian Federation is a very real prospect.

After the fact of carrying out business activities in violation of the law has been recorded, law enforcement agencies must prove two facts:

the fact that the person conducted entrepreneurial activity;
the fact that the person received income exceeding 250 thousand rubles or caused by his actions damage in an amount higher than indicated.

Most often, in order to prove that a person is actually trading or providing services, a test purchase is made. Evidence of receipt of income can include bank statements, primary accounting documentation, testimony of counterparties and other witnesses, and an assessment of the value of goods seized from the entrepreneur.

If an entrepreneur has been brought to criminal liability, the court in most cases is limited to a fine, but it is always worth keeping in mind that there is also the possibility of applying the highest penalty for this article - imprisonment. To do this, you just need to receive income on a particularly large scale or commit a crime by an organized group of people (for example, together with your accountant).

If law enforcement officers were able to prove the fact of conducting illegal business activities, but were unable to prove receipt of income on a large or especially large scale, the crime will be reclassified as an administrative offense.

Administrative responsibility

This type of liability is used more often because it does not require proven income. Most often, street vendors or other persons trading without registration are held accountable. Administrative fine for trading without registering an individual entrepreneur under Art. 14.1 Code of Administrative Offenses of the Russian Federation:

from 500 to 2 thousand rubles for business activities without registration (for example, a fine for illegal trading on the street);
for business activities without a license - from 2 to 50 thousand rubles with confiscation of all products and raw materials (for example, a fine for illegal trade in alcohol). The size of the fine depends on who committed the offense, the mildest punishment is for an individual, the most severe for a legal entity;
for business activities in violation of the terms of the license - from 1.5 to 40 thousand rubles;
for gross violation of the terms of the license - from 4 to 50 thousand rubles with the possibility of suspending the activities of a legal entity for a period of up to 90 days.

An offense is proven in the same way as a crime under Art. 171 of the Criminal Code of the Russian Federation: a test purchase is made to prove the fact of conducting activities or conducting them in violation of the terms of the license. The rest of the evidence base is collected as needed.

Tax liability

The main reason why there is liability under the above articles is that a person who is not properly registered does not pay taxes to the budget. Therefore, having discovered a violation, the tax service will try to compensate for this damage. Therefore, an individual or legal entity faces a fine for illegal trade in the amount of 10 thousand rubles plus 10% of the income received from illegal activities (Article 116 of the Tax Code of the Russian Federation).

In addition, the tax service will assess all taxes due during work without a license.

When bringing you to tax liability, you should remember that the Federal Tax Service must prove your guilt in court in order to achieve repayment of debt to the budget of the Russian Federation, therefore, with competent legal support, the amount of claims can be reduced.

How to avoid liability for trading without registration?

This is not about how to run a business without registration and sleep peacefully. In this case, there is no solution: sooner or later the regulatory authorities will become aware of your activities during a scheduled inspection, from competitors or a dissatisfied client. Therefore, to conduct business, it is better to choose the least expensive form of legal entity to maintain or register as an individual entrepreneur.

But you should always remember that in order for regulatory authorities to hold you accountable, all formal requirements must be met. One of the possibilities to evade liability is to challenge the drawn up protocol on an administrative violation. If the judge sees significant errors in it, the protocol will be sent for revision. Correcting errors and re-examining them takes time, and two months after drawing up the protocol it is no longer possible to hold the person accountable.

But often, when selling several real estate properties or concluding other large transactions by an individual, the tax office has many claims and the seller is called to explain the fact of receipt of income. In this case, you should not be afraid if you are not really running a business (even if there was an undervaluation):

come for a “conversation” with a lawyer;
insist that there is no systematicity in your activities of selling or buying something; you are not going to do business in this area. No one can prove otherwise;
refer to the owner’s right to dispose of his property as he pleases.

Even if you sold real estate to a family member at a reduced price to minimize taxes or simplify inheritance, government authorities will not be able to make any justified claims against you, so you can go to the tax office with a clear conscience. Even if you have made several transactions (more than two per year, making it possible to talk about systematicity), it will be almost impossible to prove the receipt of income.

But if you are afraid of criminal prosecution (and if a case has already been opened, you should always be afraid of it), it is better to hire an experienced lawyer as quickly as possible; he will help you assess the risks in a specific situation and correctly formulate and defend your position.

Illegal business activity, especially when it brings significant profits, will very quickly attract the attention of tax and law enforcement agencies. In most cases, the risk is not worth the possible income, so it is better to formalize your activities in accordance with the requirements of the law. But if you find yourself in a situation that threatens to bring you to administrative or criminal liability, it is important to seek legal help as soon as possible - correctly formulating your position on your own and defending it in court can be quite a difficult task.