Illegal commercial activity: composition and types of crime under the Criminal Code of the Russian Federation. Illegal entrepreneurship - judicial practice

ST 171 of the Criminal Code of the Russian Federation.

1. Implementation entrepreneurial activity 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 in large size, with the exception of cases provided for in Article 171.3 of this Code, -

shall be punishable by a fine in the amount of up to three hundred thousand rubles or in the amount wages or other income of the convicted person for a period of up to two years, or compulsory work for a period of up to four hundred eighty hours, or arrest for a period of up to six months.

2. The same act:

a) committed by an organized group;

b) associated with the extraction of income on a particularly large scale;

c) has become invalid, -

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 to Art. 171 Criminal Code

1. The objective side is characterized by two forms of criminal activity.

2. Carrying out business activities without registration, i.e. when in the Unified State Register for legal entities and the Unified State Register for individual entrepreneurs there is no record of the creation of such a legal entity or the acquisition of status by an individual individual entrepreneur. Does not require state registration: a) engaging in economic activities prohibited by law (for example, illegal drug trafficking); b) concluding one-time transactions of a civil law nature (for example, occasionally carrying out small works under a contract). Fulfillment of duties under an employment contract (tutors, domestic servants, etc.), activities of members of the bar association, and private notaries are not considered entrepreneurship.

3. the federal law dated May 4, 2011 N 99-FZ “On licensing of certain types of activities” contains a list of types of activities subject to licensing, specifies which of them are licensed at the federal level, which authorities executive power subjects of the federation, and also lists the types of activities that are licensed in accordance with other laws and regulations.

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 of article 49 of the Civil Code of the Russian Federation). If a person, after the expiration of the license or its suspension, continues to engage in entrepreneurial activity, such activity should be considered as carried out without a special permit (license).

4. A necessary condition for attracting criminal liability for illegal entrepreneurship is the infliction of large damage to citizens, organizations or the state, or that the act committed must be associated with the extraction of large income (see note to Article 170.2 of the Criminal Code).

If major damage from carrying out business activities without registration is caused by non-payment of taxes, then liability for such activities arises only under Art. 171 of the Criminal Code and additional qualifications under Art. 198, 199 of the Criminal Code is not required.

Causing harm to health of any severity while carrying out illegal business activities is not covered by Art. 171 of the Criminal Code and requires qualification based on a set of crimes.

5. Income is 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.

Many of the readers are entrepreneurs and know that such activities can both enrich and ruin. This is how civil law interprets it private business– an activity based on risk, the purpose of which is to make a profit. There are hundreds of types of entrepreneurship - in first place, of course, trading activity, followed by construction, real estate, etc. There are approximately the same number of types of illegal business activities, fines and other liability for which are provided for under the legislation of the Russian Federation.

Entrepreneurship concept

In Russia, this term is defined using the following characteristics:

All of the above characteristics are typical for commercial activities. In addition, there are additional signs that are mentioned in the explanations Supreme Court and the Office of the Tax Service of the Russian Federation: maintaining documentation on completed transactions, as well as on general work Individual entrepreneur, the presence of relationships between operations and counterparties, etc.

Illegal business

Russian legislation prohibits conducting illegal business activities; this provides for both administrative (in the form of a fine) and criminal liability. There will be non-compliance with the law if such activity:

• carried out without registration;
• carried out without a state license.

Without registering

This means that you have not submitted information about yourself as an individual entrepreneur to the tax office, and at the same time are actively conducting commercial activities to make a profit.

Signs of illegality may also include such actions of a businessman that were initially registered in accordance with the requirements of the law, but then the registration ceased (by application, due to a court decision, etc.).

Example No. 2. Rakitin P.E. has been engaged in commercial activities for a long time (furniture production and subsequent sale), he registered an individual entrepreneur several years ago. Due to the emerging economic crisis, Raktinin P.E. decided to stop production and filed an application to exclude him from the register of entrepreneurs, which was done. A few months later, Rakitin P.E. decided to resume production, hired workers, set up machines, restored connections with suppliers and buyers, but did not register again as an individual entrepreneur in the prescribed manner. IN in this case there are grounds to hold Rakitin accountable for illegal business.

In rare cases, such actions of a private owner are also recognized as illegal entrepreneurship when there is registration, but it was carried out illegally. In such situations, the falsity of the documents submitted for registration is revealed, on the basis of which an entry in the register was erroneously made.

Example No. 3. Konovalov E.N. submitted documents for registration of individual entrepreneurs, among which was an application indicating the OKVED code according to retail trade. Based on the information presented by Konovalov E.N. documents, an entry was made to register him as an individual entrepreneur in the register. Later it was established that in fact Konovalov E.N. led wholesale trade, while there was no registration of it as an individual entrepreneur wholesaler. Konovalov's actions were regarded as illegal business.

Based on the explanations of the Supreme Court of the Russian Federation, it follows that the actions of a citizen who initially acquired a certain thing, item, real estate for personal use, and subsequently entered into a lease agreement (even for long term), since the property belonging to him was not useful.

Example No. 4. Nikeshina R.G. I bought a one-room apartment in which I lived. A year later, she got married and moved in with her husband, and began renting out her apartment for replenishment. family budget. In this case, in the actions of Nikeshina R.G. there are no violations, since the apartment originally purchased was intended for personal use. At the same time, if Nikeshina R.G. does not report for additional income and does not pay 13% on it, then there may be questions from the tax inspectorate, up to and including criminal prosecution under Art. 198 of the Criminal Code of the Russian Federation.

Without a license

In some cases provided for by law, for the legal activities of an individual entrepreneur, registration alone is not enough; you must obtain a license.

Thus, in accordance with Federal Law FZ-99 of 05/04/2011 “On licensing of certain types of activities”, a license must be obtained:

• for the production of alcohol-containing products;
• for the activities of credit institutions;
• non-state pension funds;
• joint stock investment funds;
• insurance activities;
• private security activities;
• for business management activities apartment buildings etc.

The absence of a license in those cases that are reflected in the list of Federal Law-99 entails liability for illegal business activities for individual entrepreneurs.

Example No. 5. Leonova A.P., who has a higher education Teacher Education in area foreign languages, opened an educational center at her place of residence, while she was registered as an individual entrepreneur with the purpose of activity - “providing other types of services.” During an audit conducted by the tax authorities, it was found that, in violation of the requirements of the law “On Licensing,” Leonova A.P. did not receive a license for educational activities, which was the basis for bringing her to justice.

A violation will also occur in cases where the entrepreneur continues to operate, but:

• a previously obtained license has been revoked;
• an application for a license has already been submitted to the licensing authority, but a decision has not yet been made (or the issuance has been refused);
• if the permit has expired.

When an entrepreneur has a license to certain type activity and at the same time is engaged in another type, for which it is also necessary to have a special permit, such entrepreneurship will also be considered not to comply with the law.

Example No. 6. Dorin G.O. For many years he was engaged in private medical practice under a license received by him from the Ministry of Health of the region. After many years of work, he also began to engage in pharmaceutical activities, however, in violation of the requirements of federal legislation, he did not receive a license for this type, and was prosecuted in the form of a fine for illegal business activities.

Administrative responsibility

The decision to bring to administrative liability Article 14.1 of the Code of Administrative Offenses of the Russian Federation is made by the magistrate of the judicial district in whose territory the offense was recorded.

How is an offense detected? A representative of the tax inspectorate, police, state trade inspectorate, etc. can visit an entrepreneur with an inspection at the request of citizens or on his own initiative. These officials draw up a protocol reflecting all the violations that were recorded.

After drawing up a protocol, a person can be brought to administrative responsibility within two months, after which the proceedings on the material are terminated. According to Part 1 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation provides for illegal business activities without registration fine from 500 to 2000 rubles.

The inspection may also consist of conducting a test purchase, the result of which will be significant, indisputable evidence of guilt. Typically, test purchases are used by the police to identify illegal businesses without a license, often in the field of sales alcoholic products. In such cases, liability arises under Part 2 of Art. 14.1 Code of Administrative Offenses of the Russian Federation, where punishment may be in the form of a fine from 2000 to 2500 rubles with or without confiscation of manufactured products.

Example No. 7. The police received a report of the illegal business activities of individual entrepreneur A.A. Rasulov, who was selling food in his own store located in a residential area of ​​the city. From a resident of the building on the ground floor of which there was a store, there were complaints that Rasulov did not have a license to sell alcoholic beverages. At the same time, as follows from the complaints, at night he sells vodka and beer to people who immediately drink the purchased drinks in the courtyards of residential buildings. During the test purchase, the fact of selling alcohol in the absence of a license was confirmed, and a protocol was drawn up under Part 2 of Art. 14.2 Code of Administrative Offenses of the Russian Federation. Subsequently, Rasulov A.A. imposed a fine of 2,500 rubles.

Part 3 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation provides for punishment in the form of a fine up to 2000 rubles for illegal business when there are violations of the terms of the license. If such violations are recognized as gross, then punishment is imposed under Part 4 of the specified article of the Code of Administrative Offenses of the Russian Federation (fine up to 8000 rubles). For each type of activity, the Decree of the Government of the Russian Federation establishes individual criteria according to which this or that violation of conditions can be classified as gross.

Example No. 8. Markin E.P. registered as an entrepreneur, he was issued a license for transportation activities by car, equipped to accommodate more than 8 people. Markin E.P. challenged in court his prosecution under Part 4 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, considering that the lack of equipment to check the technical serviceability of cars is not a gross violation, he did not agree with the fine imposed on him in the amount of 8,000 rubles. Contrary to the arguments of E.P. Markin, the court recognized the protocol drawn up against him under Part 4 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, since paragraph 5 of the Regulations on Licensing Transportation, approved by the Government of the Russian Federation, the repeated absence of equipment and premises for car repairs within a year is considered a gross violation.

Liability under the Criminal Code of the Russian Federation

For criminal liability for illegal entrepreneurship, one of the mandatory features, according to Art. 171 of the Criminal Code of the Russian Federation, is causing major damage - that is, exceeding 2 million 250 thousand rubles. Damage can be caused to both citizens and any organizations, as well as the state.

As an alternative feature, which may be instead of “causing major damage,” “extraction of income” in a similar amount is provided.

Example No. 9. Kolaev G.E. carried out private security activities as an individual entrepreneur with an expired license. He was prosecuted for committing a crime under Part 1 of Art. 171 of the Criminal Code of the Russian Federation, but he appealed the guilty verdict due to disagreement with the accusation - he believed that he had not caused harm to anyone. As a result of the appeal consideration of the case, the verdict was left unchanged, since his income from illegal activities for 2019 amounted to 3,500,000 rubles, that is, exceeded 2,250,000 rubles, and the presence of the sign of “causing major damage” is not required here.

Note that when recalculating income, according to the explanations of the Supreme Court of the Russian Federation, the revenue received by the entrepreneur without taking into account expenses and expenses, as well as taxes, is taken into account.

According to Part 1 of Art. 171 of the Criminal Code of the Russian Federation for illegal business (both without registration and without a license or in violation of the terms of the license) faces fine up to 300,000 rubles or compulsory work up to 480 hours.

If there are additional signs (Part 2 of Article 171 of the Criminal Code of the Russian Federation), punishment for illegal business activities can be in the form of:

• fine up to 500,000 rubles;
• imprisonment up to 5 years with a fine of up to 80,000 rubles or without it.

Such additional (qualifying) features may be:

1. commission of a crime by an organized group - when several criminals unite with the aim of carrying out business activities illegally, while roles are clearly distributed between them, each receives a part of the income, etc.
2. if the income received as a result of criminal activity is particularly large, that is, exceeds 9 million rubles.

Combination with other crimes

Often, simultaneously with illegal business activities, the actions of the perpetrator also contain other elements of crimes, for example:

• use of someone else's trademark or name, various product designations belonging to another organization - then the actions are additionally qualified under Art. 180 of the Criminal Code of the Russian Federation;
• production, storage, transportation or sale of goods without excise marking, if it is mandatory in accordance with the law, there will be additional qualification under Art. 181 of the Criminal Code of the Russian Federation;
• if a product is sold that does not meet the safety requirements of citizens, then additionally the actions of the violator will be qualified under Art. 238 of the Criminal Code of the Russian Federation.

Typically, the purpose of illegal business is tax evasion. Meanwhile, if an individual entrepreneur conducts illegal activities, his actions should be additionally qualified under Art. 198 of the Criminal Code of the Russian Federation (non-payment of taxes) is prohibited. During the investigation, all income extracted by the perpetrator will be recognized as material evidence in a criminal case under Art. 171 of the Criminal Code of the Russian Federation and, in the event of a guilty verdict, everything will be turned into state income.

If an entrepreneur engaged in criminal activities such as selling weapons, manufacturing psychotropic substances, etc., then these actions are fully covered by specific articles of criminal law, without Art. 171 of the Criminal Code of the Russian Federation.

Results

So, you should know about liability for illegal business under Article 171 of the Criminal Code of the Russian Federation:

1. it occurs as a result of a person’s ongoing activities aimed at systematically extracting profit without state registration, without a license or in violation of licensing conditions, if such actions caused damage to citizens in the amount of more than 2,250,000 rubles, or generated income in this amount (if less than 2,250,000 - liability arises under Article 14.1 of the Code of Administrative Offenses of the Russian Federation);
2. Both an entrepreneur and a person who actually conducts such activities, but does not have state registration, as well as the head of a legal organization whose activities are not registered can be brought in as an accused;
3. Any regulatory authorities, as well as the police and the prosecutor's office, where you can write a complaint if necessary, declare the fact of illegal business, can conduct an inspection and identify violations;
4. The maximum punishment provided for in Article 171 of the Criminal Code of the Russian Federation is imprisonment for up to 5 years.

The legislation provides different types responsibility for illegal business. Art. 171 of the Criminal Code of the Russian Federation the punishment for activities without registration or permission (if required) is determined. The main feature of a crime is the presence of damage to organizations, individuals, the state or the receipt of profit. As indicated Art. 171 of the Criminal Code of the Russian Federation, income or the harm must be major. Let's take a closer look at the norm.

Art. 171 of the Criminal Code of the Russian Federation: corpus delicti

Conducting business activities without registration or without a license, when it is mandatory, if it caused damage to the state, organizations, citizens or was associated with the extraction of profit on a large scale, entails:

1. Monetary recovery up to 300 thousand rubles. or equal to the salary/amount of other income for 2 years.
2. Up to 6 months arrest.
3. Up to 480 hours of mandatory work.

Aggravating circumstances

If the above acts are committed by an organized group or are associated with making a profit on a particularly large scale, the perpetrators face:

1. Fine 100-500 thousand rubles. or amounting to the amount of other income for 1-3 years.
2. Forced labor.
3. Imprisonment.

The last two penalties are punishable for up to 5 years. At the same time, the judge can add a fine of up to 80 thousand rubles to the prison sentence. or the amount of other income for six months.

Comments

Art. 171 of the Criminal Code of the Russian Federation in new edition establishes penalties for activities that can in principle be registered. The Supreme Court provided clarification on this issue. In one of the decisions, the court indicated that in order to impute to a citizen illegal entrepreneurship (Article 171 of the Criminal Code of the Russian Federation), composition his actions must contain the signs specified in the Civil Code. In Art. 2 of the Code reveals the definition of the activities of an economic entity. In particular, it is stated that entrepreneurship is aimed at systematically generating income from the use of property, sale of products, provision of services or performance of work. Such activities are carried out independently at the own risk of the person registered as an individual entrepreneur in the prescribed manner.

Nuances of practice

In a number of cases, a person who has not been registered and has not received the status of an individual entrepreneur acquires residential or non-residential premises for his own needs, receives it under contracts, including donations, as well as inheritance, but due to the lack of need to use the space, he rents it out. Accordingly, the citizen receives a certain profit from this transaction. However, in this case composition of Art. 171 of the Criminal Code of the Russian Federation is missing. If the specified entity evaded making mandatory contributions to the budget from the profit received, its actions, if there are appropriate grounds, are qualified according to norm 198 of the Code. If a citizen engaged in prohibited activities, responsibility falls directly on them. For example, this could be the sale of weapons, human trafficking, production of drugs, psychotropic compounds, their analogues, organization gambling(Article 171.2 of the Criminal Code of the Russian Federation) and so on. In situations where a citizen, pursuing the goal of making a profit, conducts illegal economic activity, the punishment for which is established by other norms of the Code, additional qualification of the norm in question is not carried out.

Objective part

Article 171, present in the Criminal Code of the Russian Federation, establishes responsibility for initiative, independent activity carried out by a person at his own risk, aimed at systematically extracting profit from the use of property, provision of services, performance of work, sale of products on illegal grounds.

Forms of violations

Illegal activities in the field of entrepreneurship can be expressed in:

1. Lack of registration or special permission.
2. Providing knowingly false information to a regulatory authority.
3. Violation of license conditions and requirements.

Lack of registration

The act specified in part one of Art. 171 of the Criminal Code of the Russian Federation, occurs when the subject:

1. Conducts activities without creating a legal entity or forms a commercial enterprise without going through the registration procedure established by regulations.
2. I submitted documents to the registration authority, but started work without waiting for the certificate to be issued.
3. Received a refusal for state registration. It does not matter whether the decision of the authorized body was legal or illegal. If an entity conducts an activity, the registration of which was denied to it, it can be prosecuted under Art. 171 of the Criminal Code of the Russian Federation to liability.

Aircraft instructions

To establish a violation, the punishment for which is provided for in Art. 171 of the Criminal Code of the Russian Federation, it is necessary to identify the fact that there is no record in the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs about the formation of a legal entity or the receipt by a citizen of the status of an individual entrepreneur or the presence of a note about the liquidation of an organization or termination of work of an individual. Conducting activities in violation of state registration rules should be understood as the work of an entity that was aware of non-compliance with the registration procedure, which, in turn, provides grounds for declaring it invalid. For example, the documentation was not presented in full, prohibitions were not observed, etc.

Lack of permission

Regulatory acts establish a list of works that are not permitted to be carried out without permission. The right to conduct activities subject to licensing arises from the moment of receipt required document, but terminates upon its suspension, cancellation or expiration of the validity period. Entrepreneurship in the absence of permission occurs in cases where a person starts work:

1. Without contacting the competent authority authorized to issue the document.
2. After submitting the application and documents, but before receiving a response.
3. After suspension, cancellation, or expiration of the permit.
4. In several areas, similar in content, but has a license for only one of them.
5. By permission issued to another entity.

Important point

As the Plenum of the Supreme Court explained, if the Federal Law allows the conduct of activities exclusively under a license, but does not establish conditions and procedures, and the entity, in turn, began work without obtaining permission, its actions are associated with making large profits or causing harm to the state and other organizations or citizens, qualify under the article in question. 171 of the Criminal Code of the Russian Federation. As lawyers note, this approach cannot be called indisputable and flawless. The experts explain their position by the fact that, in addition to the fault of the entity conducting activities in violation of the norms, there is also the fault of the authorized bodies, which are obliged to regulate the conditions for obtaining a permit, but have failed to do so. It is worth mentioning one more instruction given by the Armed Forces. The court noted that if the Federal Law excludes the corresponding type of work from the list of activities subject to licensing, the actions of the subject do not contain signs of a crime established by Art. 171.

Additionally

In practice, there may be cases when regional authorities take normative act on issues related to the licensing of certain types of work, going beyond its competence, in violation of the Federal Law, or when legal regulation assigned to the joint jurisdiction of the Russian Federation and the subject. In such situations, a person who carried out activities without permission or received it according to established rules, but allowed deviations from the requirements and conditions, cannot be held accountable.

Impact assessment

An act is considered completed when direct damage is caused to the state, organizations, citizens or when large profits are received. Relevant evaluative concepts are disclosed by a note to Article 169 of the Criminal Code. Major damage/size is, according to the provisions, an amount greater than 250 thousand rubles. Explanations on this issue are provided in the plenary Resolution of the Supreme Court. The court points out that as income within the scope of Art. 171 of the Criminal Code, is the proceeds from the sale of services, products or work without deducting the costs incurred by the entity in connection with the implementation of activities.

Subjective part

It is characterized by guilt in a deliberate form. The person held accountable may be a citizen who has reached 16 years of age. In addition, the subject of the crime may be an individual who, due to his official position, temporarily, specially or permanently performed duties related to the management of the organization, and actually carried out management functions. This may be the director of the enterprise, another employee who has the right to act without a power of attorney on behalf of the company. If the subject is in labor relations with an individual entrepreneur or legal entity conducting activities in violation of the state registration procedure or without a license, if it is mandatory, with non-compliance with the conditions and requirements established by the received permit, the employee’s performance of his duties arising from the contract does not fall under the provisions of the norm in question. An exception to this rule are persons exercising management functions (by special authority, temporarily or permanently).

Qualifying features

These include the receipt of particularly large profits and an act committed by an organized group. The first concept is revealed in Art. 169. A profit exceeding 1 million rubles is considered especially large. It should be said that the norm in question has undergone changes. Art. 171 of the Criminal Code of the Russian Federation does not contain the third qualifying feature that existed previously.

Specifics of qualifications in aggregate

A number of problems that arise when identifying signs of other crimes in an act were explained by the Plenum of the Supreme Court. As the court points out, if, when carrying out activities, a person unlawfully uses a trademark belonging to another entity, the name of the place of origin of products, a service mark, similar means of identifying similar products, and in the presence of other circumstances, norms 180 and 171 in combination are subject to application. A similar rule applies in other cases. For example, if in the course of the operation of an enterprise, in violation of the rules of registration or licensing, there is the release, acquisition, transportation, storage for subsequent sale or sale of unmarked products, excisable goods subject to marking with signs protected from counterfeiting, committed in large or especially large quantities, actions of a person are additionally qualified under Art. 171.1 of the Criminal Code of the Russian Federation. If the activity was related to the manufacture, transportation, sale of products, provision of services, performance of work that does not comply with safety requirements, liability arises according to the commented norm and Art. 238 of the Code. If the work of an enterprise is accompanied by the unauthorized release, use, sale, or counterfeiting of a state-issued hallmark, the act is additionally qualified under Art. 181.

Sphere of tax relations

In practice, difficulties often arose in qualifying violations of the Tax Code. Clarifications on this matter were given to the Supreme Court. The court indicated that the actions of an entity found guilty of conducting illegal business, failing to pay fees and taxes on profits received from such activities, are fully covered by the criteria established in Art. 171 of the Code. At the same time, money, property, other material values that were acquired as part of this act will act as material evidence in the case in accordance with the provisions of Art. 81 Code of Criminal Procedure (part 1, paragraphs 2 and 2.1). As Part 3, Clause 4 of this article indicates, these items are subject to seizure in favor of the state with the justification for such a decision provided in the court verdict. The crimes specified in part of the first commented norm are considered acts of minor gravity, in part 2 - moderately serious.

Conclusion

Entrepreneurship in the Russian Federation is a fairly large-scale field of activity. Job large quantity Various firms are controlled quite tightly today. Unfortunately, at present there are still a large number of unscrupulous business entities. Responsibility established by law is aimed not only at suppressing acts in economic sphere. Punishments are educational and preventive in nature. Compliance with the requirements established by law when carrying out economic activities ensures not only the safety of consumers, but also preserves the business reputation of companies.

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) the clause has lost force since December 11, 2003 - Federal Law of December 8, 2003 N 162-FZ, -
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.

The note has lost force since August 8, 2004 - Federal Law of July 21, 2004 N 73-FZ.

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

1. The objective side is characterized by two forms of criminal activity. The first is carrying out business activities without registration, i.e. when in the unified state register for legal entities and the unified state register for individual entrepreneurs there is no record of the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur. Fulfillment of duties under an employment contract (tutors, domestic servants, etc.), activities of members of the bar association, etc. are not considered entrepreneurship.

The second form is carrying out business activities without a license, when such a license is mandatory.

The right to carry out activities for which a license is required arises from the moment of its receipt 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 of the license (clause 3 of Art. 49 of the Civil Code of the Russian Federation). If a person, after the expiration of the license or its suspension, continues to engage in entrepreneurial activity, then such activity should be considered as carried out without a license.

2. A necessary condition for bringing to criminal liability for illegal business is the infliction of large damage to citizens, organizations or the state, or the act committed must be associated with the extraction of large income (see note to Article 169 of the Criminal Code).

Income is 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.

3. If major damage from carrying out business activities without registration is caused by non-payment of taxes, then liability arises only under Art. 171 of the Criminal Code and additional qualifications under Art. Art. 198, 199 of the Criminal Code is not required.

4. The subjective side of the crime is characterized by an intentional form of guilt.

5. The subject of the crime is a sane person who has reached the age of 16 years.

Another commentary on Article 171 of the Criminal Code of the Russian Federation

1. The main direct object - public relations in the field of entrepreneurial activity. An additional object is the protected interests of citizens, society and the state. It's about about actually permitted business activities, and not about its prohibited types or those requiring 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 No. 23 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) Money or other property acquired criminally" (Russian newspaper. 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. Composition by design 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.

Many people have a question: “What is illegal business. How to qualify it, by what criteria? What is the responsibility for business without registration?”

Each of us at least once had to make deals or do some kind of work. They are often personal, private, isolated and of no interest to official bodies. But other deals and agreements are concluded constantly and bring regular income. It is such transactions that can arouse the curiosity of the tax authorities.

For example, if you bought a piece of land, and then, after some time, sold it and at the same time made a profit, then this is not an illegal business, because the deal was a one-off, enclosed between individuals and therefore does not fall under the category of entrepreneurial activity.

But if a person regularly purchases land (as well as equipment, cars, etc.) for the purpose of resale and profit, then such a person is an entrepreneur. Moreover, if he is not registered in the manner prescribed by law, and has not received a license (if required), then the entrepreneur is illegal.

Some “entrepreneurs” deliberately evade tax evasion, while other people do not even realize that their activities fall under the definition of entrepreneurship, which means that a person must. Entrepreneurial activity may be different: rental of premises, training, oil and gas, equipment repair, provision of various kinds consultations, tailoring, souvenir development, design services, website creation, etc.

Often people who are engaged in entrepreneurial activities consider themselves so-called freelancers. Usually they are paid for the work done either “in black money”, without any contracts, or under contract agreements, i.e. taxes, as they are, are paid for by the company for which they wrote an advertising article, made a translation, or provided some other one-time service. Therefore, if a person’s activity is episodic and income is very modest, such work is your personal business.

Note: Selling personal belongings, performing minor work and errands from time to time does not carry with it either administrative or criminal liability. This also does not apply to a one-time rental of your apartment.

The difference between entrepreneurial activity and freelancing is that it is built on a permanent professional basis and its main goal is to make a profit. If you made a large profit from the sale of your own property, this is not considered entrepreneurship. In other cases, when there is independence, carrying out work on an ongoing basis in order to generate income, but there is no registration, you can get into trouble.

They want to increase fines for illegal business

It is proposed to increase fine for illegal business, setting its size from 3 to 5 thousand rubles.

SIGNS of illegal business activity

1. independence of economic activity and its implementation at your own risk;
2. systematic profit-making as the goal of activity;
3. use of property, sale of goods, performance of work or provision of services as sources of profit.

At the same time, the signs of entrepreneurial activity must be distinguished from the forms of illegal entrepreneurial activity enshrined in the disposition of Article 171 of the Criminal Code of the Russian Federation.

Independence of economic activity presupposes, first of all, that the physical or entity- an entrepreneur participates in civil circulation directly, on his own behalf, by his own will and in his own interest.

That's why, economic activity, deprived of independence, cannot be considered as entrepreneurial. It's already labor relations between employee and employer. And such activities are most often legally formalized by an employment contract, even if not properly executed. An employment contract is different from ( characteristic of entrepreneurship) by its subject.

Subject employment contract is “the living labor of the worker itself.” Accordingly, in labor relations, the employee becomes subordinate to the employer, disciplinary relations arise, the employee’s work is organized by the employer, who appropriates the income and bears the commercial risk of losses from business activities.

THREE FORMS of illegal entrepreneurship:

• without state registration,
• without a license,
• in violation of licensing.

Even if you legally registered as an individual entrepreneur, but did not receive a license for the activities that require, you are also working illegally, i.e. you are an illegal entrepreneur. Moreover, it is necessary to remember that each type of activity may require a separate license, and if you do not have one, you are engaged in illegal business activity. This is also worth considering.

Note: For example, opening treatment center, you should not sell medications until you receive a separate document.

Criminal, administrative or tax LIABILITY

Occurs if the actions of the entrepreneur caused serious damage to citizens, organizations or the state, or income was generated on a large scale (i.e. over 1 million 500 thousand rubles).

Note: Note to clause 2 of Art. 169 of the Criminal Code of the Russian Federation.

In other cases, the perpetrators bear administrative responsibility in the form of fines. As punishment Art. 171 of the Criminal Code of the Russian Federation provides for a fine (in the amount of up to 300 thousand rubles or in the amount of wages or other income of the convicted person for a period of up to two years), compulsory work for up to 480 hours) or arrest for up to six months.

For example, you decided to earn a lot of money by reselling some expensive product (car, land, building materials, etc.). In one case, such a transaction may, due to its uniqueness, be excluded from the definition of entrepreneurial activity; in another, due to the receipt of a fairly large income, it may be classified as illegal entrepreneurship.

Tax liability for illegal business

The Tax Code of the Russian Federation provides for liability for activities without registration in two articles at once: . Failure to register with the inspectorate will result in a fine of 10 percent of the income received, but not less than 40 thousand rubles.