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Illegal business of the Civil Code of the Russian Federation. Illegal business - judicial practice

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

shall be punishable by a fine in the amount up to 300 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period up to two years, or compulsory works for a term of up to four hundred and eighty hours, or by arrest for a term of up to six months.

2. The same act:

a) committed by an organized group;

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

c) expired

shall be punishable by a fine in the amount of 100 thousand to 500 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to three years, or by compulsory labor for a term of up to five years, or by deprivation of liberty 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. Has lost its power.

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

1. The crime encroaches on the legal order of 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 Supreme Court of the Russian Federation, given in connection with issues that have arisen in judicial practice, in the Decree of November 18, 2004 N 23 "On judicial practice in cases of illegal entrepreneurship and legalization (laundering) Money or other property acquired by criminal means" // BVS RF. 2005. N 1. P. 2 - 6.

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

3. The implementation of entrepreneurial activity without registration, as explained by the Plenum of the Supreme Court of the Russian Federation, will be in cases where the Unified State Register for legal entities and the Unified State Register for individual entrepreneurs there is no record of the creation of a legal entity or the acquisition by an individual of the status of an individual entrepreneur (clause 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 (farmer) economy or a legal entity - a commercial organization (the requirements imposed by law when registering entrepreneurial activities were considered in the commentary to Article 169 of the Criminal Code) . Article 171 of the Criminal Code refers to those cases where persons without good reasons evade registration of 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 of the Criminal Code; 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 for personal needs a dwelling or other real estate or received it by inheritance or under a donation agreement and, having leased or rented it, received income, including on a large or especially large scale. 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 entrepreneurial activity in violation of the registration rules means that a legal entity or an individual entrepreneur, having a registration certificate for one type of entrepreneurial activity, carries out other economic activities 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, obviously for the perpetrator, violations were committed that give 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 take place.

5. Submission to the body that carries out the registration of legal entities and individual entrepreneurs, 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 about 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 the right to an entrepreneur to engage in a certain type of economic activity for a period of time. due date subject to the conditions for the implementation of this activity. The licensing procedure is established by the Federal Law of August 8, 2001 N 128-FZ "On Licensing certain types activities" (as amended by the Federal Law of July 2, 2005). The law includes such types of activities as licensed activities, the implementation of which may entail damage to the rights, legitimate interests, morality and health of citizens, national defense and state security. The law defines the general principles of licensing, indicating specific types of business that are licensed only at the federal level (arms trade, all transactions with precious metals and stones, with narcotic and psychotropic substances, etc.), as well as types of activities, permission for which is issued by the executive authorities of the subjects of the Russian Federation (real estate, medical and veterinary activities, operation of gas stations, etc.). Licensing authorities may also be local governments, for example, in cases where a license is issued for the right to conduct educational activities(Clause 7, Article 33 of the Federal Law "On Education") or the right retail alcoholic products (Article 18 of the Federal Law "On state regulation production and turnover ethyl alcohol And alcoholic products"). Licenses must be obtained by registered entrepreneurs for each type of activity. (On the procedure for licensing, 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 an appropriate special permit (license), if they negligently caused harm to human health or death, must be qualified under Art. 235 of the Criminal Code. In the event that 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 large 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. 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 engaged in entrepreneurial activities without state registration. It should be borne in mind that persons (with the exception of the head of the organization) who are in labor relations with an organization or with an individual entrepreneur engaged in entrepreneurial 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 clause 11 of the said Resolution). Carrying out entrepreneurial 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 submitted documents containing deliberately false information to the registration authority is liable under Part 4 of Art. 14.25 Administrative Code.

9. Part 2 of Art. 171 of the Criminal Code contains two qualifying circumstances: a) commission of a crime by an organized group; b) extracting income on an especially 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 a 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) extracted 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 process of illegal entrepreneurial activity actions are committed that contain signs of other crimes, for example, crimes under Art. 171.1 (production, purchase, storage, transportation for the purpose of marketing or sale of unmarked goods and products), 181 (violation of the rules for the manufacture and use of state assay marks) or 238 of the Criminal Code (production, storage, transportation or sale of goods and products, performance of work or provision services that do not meet security requirements) (clauses 15 and 16 of the said Decree), then such actions should be qualified according to the totality of crimes under Art. 171 and the 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 entrepreneurial activity is covered by the features of Art. 171 of the Criminal Code (clause 16 of the said Resolution).

Tax and other regulatory authorities quite often bring certain persons to responsibility for illegal business. Every day there are many convictions for this crime. However, even the courts often have questions related to its legal qualification. Let's try to understand the most important of them.

First of all, let us turn to the definition of entrepreneurial activity. According to civil law, this is “an independent activity carried out at one’s own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law” (clause 1, article 2 of the Civil Code RF).

Based general rule“Participants in relations regulated by civil law (including entrepreneurial. - Ed.) Are citizens and legal entities” (clause 1, article 2 of the Civil Code of the Russian Federation), they are the subjects of the offense under Art. 171 of the Criminal Code of the Russian Federation. Possible involvement of public law entities (e.g. Russian Federation, subjects of the Russian Federation and municipalities) we will not consider in this material.

Citizens and legal entities. Legal capacity

Unlike legal entities, the set of citizens is heterogeneous. It consists of citizens who have:

only general legal personality;

both general and special legal personality (that is, entrepreneurs).

According to the Civil Code of the Russian Federation, “a citizen has the right to engage in entrepreneurial activities without forming a legal entity:” (clause 1, article 23 of the Civil Code of the Russian Federation). It is subject to the rules “which regulate the activities of legal entities that are commercial organizations, unless otherwise follows from the law, other legal acts or the essence of the legal relationship” (clause 3 of article 23 of the Civil Code of the Russian Federation).

The Code distinguishes several categories of such citizens and, on this basis, connects the moment they acquire special legal personality with the onset of various events:

general category (entrepreneurs without forming a legal entity) - “from the moment of state registration as an individual entrepreneur” (clause 1, article 23 of the Civil Code of the Russian Federation);

a special category “the head of a peasant or farm enterprise, carrying out activities without forming a legal entity” - “from the moment of state registration of a peasant (farm) enterprise” (clause 2, article 23 of the Civil Code of the Russian Federation).

The legal capacity and legal capacity of a legal entity arise and terminate simultaneously at the time of its creation and at the time of making an entry on its exclusion from the Unified State Register of Legal Entities (clause 3, article 49 of the Civil Code of the Russian Federation).

The legislator associates the emergence of special legal personality among citizens and legal entities with obtaining a special permit (license). According to civil law, “the right to carry out activities for which a license is required arises from the moment such a license is received or within the period specified in it and terminates upon the expiration of its validity period, unless otherwise provided by law or other legal acts” (paragraph 3 article 49 of the Civil Code of the Russian Federation).

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

Objective and subjective sides of the crime

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

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

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

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

Therefore, the Plenum of the Armed Forces of the Russian Federation indicated that “in cases where a person, with the aim of generating income, is engaged in illegal activities, liability for which is provided for by other articles of the Criminal Code of the Russian Federation (for example, the illegal manufacture of firearms, ammunition, the sale of narcotic drugs, psychotropic substances and their analogues), what he did does not require additional qualification under Article 171 of the Criminal Code of the Russian Federation ”(clause 18 of the resolution of the Plenum of the Armed Forces of the Russian Federation of November 18, 2004 N 23, hereinafter - resolution N 23).

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

Subjects of the crime

Having described illegal entrepreneurship from the objective and subjective sides, let us return to the subjects of this crime, or rather, to the problem of establishing their circle. As noted above, the legislator, in order to qualify the act as illegal entrepreneurship, established two types of vice of the subject:

in registration, that is, in existence itself;

in the emergence of special legal personality.

Defect in registration can be expressed in various forms. It can be either a lack of registration or a violation of its rules.

At the same time, “carrying out entrepreneurial activities without registration will take place only in cases where the Unified State Register for Legal Entities and the Unified State Register for Individual Entrepreneurs does not contain an entry on the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur, or contains an entry on liquidation a legal entity or the termination of the activities of an individual as an individual entrepreneur ”(clause 3 of Resolution No. 23). Under the implementation of entrepreneurial activities in violation of the rules of registration should be understood as "the conduct of such activities by a business entity, which knowingly knew that during registration there were violations that give grounds for recognizing the registration as invalid (for example, documents were not submitted in full, as well as data or other information necessary for registration, or it was made contrary to existing prohibitions ”(clause 3 of Resolution No. 23).

The Civil Code of the Russian Federation twice allows for the possibility of legally conducting entrepreneurial activities without registration, both for citizens and legal entities. So, in the cases provided for in paragraph 4 of Art. 23 of the Code, “a citizen engaged in entrepreneurial activity without forming a legal entity in violation of the requirements: (on registration. - Ed.) is not entitled to refer, in relation to the transactions concluded by him, to the fact that he was not an entrepreneur. The court may apply to such transactions the rules: (Civil Code of the Russian Federation. - Auth.) on obligations related to the implementation of entrepreneurial activities.

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

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

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

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

The interpretation by the Plenum of the Supreme Court of the Russian Federation of the legal qualification of the activities of a legal entity with special legal capacity and, therefore, incapable of conducting other activities, except for the one for which it was created, looks very original, as activities without registration or as activities without a license (paragraph 6 of Resolution N 23). Here the Plenum contradicts itself: paragraph 6 of Resolution No. 23 contradicts paragraph 3 of the same resolution, expanding the content of the concepts “activities without registration” and “activities without a license”. It appears that in this case The Plenum of the Supreme Court of the Russian Federation was supposed to use the right to interpret the rules of law and give a broad interpretation not to these concepts, but to the concept of “illegal entrepreneurship”. The activities of an already established subject of law and entrepreneurial activity outside the limits of exclusive competence cannot be recognized as activities without registration.

Liability: criminal, tax, administrative

If a person conducts entrepreneurial activities without registration (Article 171 of the Criminal Code of the Russian Federation), the state does not have the opportunity to accurately determine the amount of his income - tax base and calculate the amount of taxes or fees. Registration is carried out by the Federal Tax Service of the Russian Federation (Article 2 of Federal Law No. 129-FZ of 08.08.2001). The Tax Code of the Russian Federation provides for administrative liability for violation of the deadline for registration with the tax authority (Article 116 of the Tax Code of the Russian Federation) and evasion of such (Article 117 of the Tax Code of the Russian Federation). Article 14.1 of the Code of Administrative Offenses of the Russian Federation, establishing administrative responsibility for conducting entrepreneurial activities without state registration or a special permit (license), duplicates the provisions of the Tax Code of the Russian Federation (in particular, clause 1, article 117 of the Tax Code of the Russian Federation).

At the same time, it should be borne in mind that the Code of Administrative Offenses of the Russian Federation refers to administrative responsibility for carrying out entrepreneurial activities without state registration. The Tax Code of the Russian Federation provides for the onset of administrative responsibility at a later stage, that is, when a person is registered as an organization or individual entrepreneur, but at the same time evades registration with the tax authority as a subject of taxation (taxpayer). This circumstance determines the application of various measures of administrative responsibility in the event that a person commits one or another of the above offenses.

When limiting the scope of the norms of administrative and criminal law, it must be borne in mind that the criminal law norm (Article 171 of the Criminal Code of the Russian Federation) is of a material nature (the material composition of an offense is a crime). A necessary condition for its application is the infliction of damage of a certain amount or illegal extraction of income in a certain amount. The administrative-legal norm is of a formal nature (the formal composition of the offense) and therefore does not require the establishment of the fact of causing damage. A mere formal violation of a legal order is sufficient (clause 13 of the Decree of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 N 18).

Unfortunately, the Presidium of the RF Armed Forces ignores a very important practical activities both law enforcement and judiciary bodies face the problem of delimiting the scope of the norms of administrative, criminal and civil law in the implementation of mixed legal regulation of the same legal relations. As a result, the question of the norm of which branch of law to apply to resolve a particular incident is always relevant and insoluble. Therefore, every time it is solved differently. And the meager amount of damage established as the lowest limit for the application of the norm of criminal law, on the one hand, makes it nominal, and on the other hand, gives wide scope for abuse, creating a situation in which for the same actions one person is brought to administrative and the other to criminal liability. Moreover, for the damage caused in the amount of 250,000 rubles and 1 kopeck, this person does not always receive a punishment in the form of a conditional measure. By the way, a third person can generally get off with a slight fright, having received a court decision on the recovery of some amount from him.

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

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

E.V. Semyanov,
MGKA, Ph.D. Sciences

Article 171 of the Criminal Code of the Russian Federation. Illegal business

August 25, 2017

July 28, 2017

March 14, 2017

September 28, 2016

July 7, 2016

Discussion of the article

Questions about the article

Is it possible to provide services (manicure, pedicure) without registering an individual entrepreneur if the work is carried out without hiring workers. (according to the amendments to Article 23 of the Civil Code)?

Hello! I work at a kiosk where I sell newspapers and magazines. Income from 6-8 thousand rubles. Rent 2400t. rub. Do I have to open an E&P? Thank you.

The question refers to the city of Prokopyevsk. Kemerovo region.

I was an individual entrepreneur and rented a place at the fair. closed the IP and began to trade agricultural products from his site in the same place. The management of the fair is going to terminate the lease agreement with me, because I am not an entrepreneur. are they entitled to do it?

The question refers to the city of Ipatovo, Stavropol Territory

Good afternoon. Thank you in advance.

The question refers to the city of Armavir

Hello, please tell me if I am buying down-feather raw materials from the population and transporting them to my place of residence exclusively for myself, is this an illegal business activity? And what is the punishment for this?

The question refers to the city of Shakhty

what is the fine for buying ferrous metal scrap without a license to a private person

The question refers to the city of Saransk-n. novgorod

I rented a room and opened a beauty salon there, but I.P. did not issue. And then, as if evil, the tax with a check, but there are no documents. Tomorrow at 10.00 they called the tax office. How to explain and what are the consequences for business?

The question refers to the city of Perm

Good afternoon I'm planning to start freelancing online. I am developing my own website where I will advertise personal image consulting services. At the initial stage (about a year), the profit will be very small, less than 12 minimum wages per year. For this period, I do not plan to open an individual entrepreneur and provide services to clients under a contract for the provision of services. Do I need to file a tax return and make deductions to the FIU in this case? Thanks in advance for your answer!

The question refers to the city of Penza

If I, an individual, create a “Help the Site” button on my website, for example, by paying voluntary donations through some payment system like Robokassa or Interkassa, do I have to pay tax on the money received? Sincerely, Alexander

The question refers to the city of Tambov

Hello. I earn extra money by handing over black scrap to my passport in the port. 3-4 times a week in the amount of 110,000 rubles at a time. How much will I pay tax on? Thank you.

Article 171 of the Criminal Code of the Russian Federation. Illegal entrepreneurship (current edition)

Note. Has lost its power. - Federal Law of July 21, 2004 N 73-FZ.

Commentary on Art. 171 of the Criminal Code of the Russian Federation

1. The objective side of the crime is characterized by four forms of criminal activity:

1) carrying out entrepreneurial activities without registration, i.e. when there is no entry in the relevant unified state register on the creation of a legal entity or the acquisition by an individual of the status of an individual entrepreneur;

2) carrying out entrepreneurial activities in violation of the registration rules means that business entities, for example, have not registered the reorganization of a legal entity or changes made to the constituent document subject to registration;

3) submission to the state registration authority of documents containing deliberately false information, i.e. such deliberately false or distorted information that resulted in unjustified registration of a business entity;

4) the implementation of activities for which it is necessary to obtain a special permit (license) arises from the moment the permit (license) is received or within the period specified therein and terminates upon the expiration of its validity period (unless otherwise provided), as well as in cases of suspension or cancellation of a permit (license) (clause 3, 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, then such activity should be considered as being carried out without a special permit (license).

2. A necessary condition for bringing to criminal responsibility for illegal entrepreneurship 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 (works, services) for the period of illegal entrepreneurial activity without deduction of expenses incurred by the person associated with the implementation of illegal entrepreneurial activity.

3. If large damage from the implementation of entrepreneurial activity without registration is formed due to 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.

www.zakonrf.info

Article 171. Illegal entrepreneurship

a) committed by an organized group;

Note. Has lost its power.

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

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 the issues that have arisen in judicial practice, in the Resolution 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” // BVS RF. 2005. N 1. S. 2 - 6.

3. The implementation of entrepreneurial activity 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 Decree). 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) economy or a legal entity - a commercial organization (the requirements imposed by law when registering entrepreneurial activities were considered 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, evade registration of 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 of the Criminal Code; 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 for personal needs a dwelling or other real estate or received it by inheritance or under a donation agreement and, renting it out or hiring, received income, including large or extra large. The actions of such a person contain signs of a crime under Art. 198 of the Criminal Code (clause 2 of the said Resolution).

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 (Article 49 Civil Code of the Russian Federation). A license is an official document that gives the entrepreneur the right to engage in a certain type of economic activity for a specified period, subject to the conditions for the implementation of this activity. The licensing procedure is established by Federal Law No. 128-FZ of August 8, 2001 “On Licensing Certain Types of Activities” (as amended by the Federal Law of July 2, 2005). The law refers to licensed activities such 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 (trade in arms, all operations with precious metals and stones, with narcotic and psychotropic substances, etc.), as well as types of activities, permission for which issued by the executive authorities of the constituent entities of the Russian Federation (real estate, medical and veterinary activities, operation of gas stations, etc.). Licensing authorities can also be local governments, for example, in cases where a license is issued for the right to conduct educational activities (clause 7, article 33 of the Federal Law “On Education”) or for the right to retail alcohol 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 procedure for licensing, see also the commentary to Article 169 of the Criminal Code of the Russian Federation.)

7. The crime is committed with direct intent. 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 engaged in entrepreneurial activities without state registration. It should be borne in mind that persons (with the exception of the head of the organization) who are in labor relations with an organization or with an individual entrepreneur engaged in entrepreneurial 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 clause 11 of the said Resolution). Carrying out entrepreneurial 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 (Article 14.1 of the Code of Administrative Offenses of the Russian Federation). The head of a legal entity or an individual entrepreneur who submitted documents containing deliberately false information to the registration authority is liable under Part 4 of Art. 14.25 Administrative Code.

9. Part 2 of Art. 171 of the Criminal Code contains two qualifying circumstances: a) commission of a crime by an organized group; b) extracting income on an especially 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 a 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) extracted 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).

Article 171 of the Criminal Code of the Russian Federation illegal business

Criminal Code of the Russian Federation, Article 171. Illegal entrepreneurship

1. Carrying out entrepreneurial activity without registration or without a license in cases where such a license is obligatory, if this act caused large damage to citizens, organizations or the state, or is associated with the extraction of income on a large scale, except for the cases provided for by Article 171.3 of this Code, -
(as amended by Federal Laws No. 420-FZ of 07.12.2011, No. 203-FZ of 26.07.2017)

shall be punishable by a fine in the amount up to 300 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period up to two years, or by compulsory works for a term of up to 480 hours, or by arrest for a term of up to six months.
(as amended by Federal Laws No. 162-FZ of 08.12.2003, No. 26-FZ of 07.03.2011, No. 420-FZ of 07.12.2011)
(see text in previous edition)

b) associated with the extraction of income on an especially large scale, –
(as amended by Federal Law No. 162-FZ of 08.12.2003)
(see text in previous edition)

c) has expired. - Federal Law of 08.12.2003 N 162-FZ
(see text in previous edition)
shall be punishable by a fine in the amount of 100 thousand to 500 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to three years, or by compulsory labor for a term of up to five years, or by deprivation of liberty 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.
(as amended by Federal Laws No. 162-FZ of 08.12.2003, No. 420-FZ of 07.12.2011)
(see text in previous edition)

In general, illegal business, the punishment provided for by Art. 171 of the Criminal Code of the Russian Federation:

Criminal liability for illegal business is established by Art. 171 of the Criminal Code of the Russian Federation. This article provides for liability only if, as a result of such activities, large-scale damage was caused to citizens, legal entities or the state.

The law considers damage in excess of 2,250,000 rubles to be major damage in the implementation of illegal entrepreneurship. A particularly large amount of damage is considered to be more than 9,000,000 rubles.

In accordance with the Criminal Code, illegal entrepreneurial activity (Article 171 of the Criminal Code of the Russian Federation) is punishable by:

1. In the case of carrying out activities without registration or obtaining a license (if necessary), the court may apply the following types of punishments to the violator:

◦fine up to 300,000 rubles;

◦ a fine in the amount of the salary or other income of a convicted citizen for a period of up to 2 years;

◦ Compulsory work (no more than 480 hours);

◦arrest for a period not exceeding six months.

2. Part 2 of Article 171 of the Criminal Code of the Russian Federation classifies illegal entrepreneurship carried out by an organized group, or as a result of such activity causing damage on an especially large scale, to a crime punishable by the following sanctions:

◦fine in the amount of 100,000–500,000 rubles;

◦ a fine in the amount of the salary or other income of the convict for a period of 1 to 3 years;

◦forced labor (for a period not exceeding 5 years);

◦deprivation of liberty for up to 5 years, while a fine of up to 80,000 rubles or in the amount of the income (salary) of the convicted person for a period of up to six months may also be imposed (at the discretion of the court).

This is theory. And such is the practice. There are many earning sites on the Internet. For example, Avito, Yula, Dostavista and many others. People sell something to each other or perform services without registering a legal entity. That is, in theory, all this is illegal business, because no written contract is signed with them and no taxes are paid.

It's one thing if I sell my personal items. But I "can" walk through the garbage dumps in the morning, find three or four discarded bedside tables and sell them - they were not mine.

So this article works or what? Tell me, if anyone knows, is such activity legal, because no one can confirm real income? I can remove the product on Avito as sold on Avito, or I can simply indicate “for other reasons”.

Entrepreneurial activity today is engaged in everything more people. To open any business certain order, the legislative framework and responsibility for violation of the law. Increasingly, cases of illegal business activity or fraud are emerging.

What is illegal business activity

Illegal entrepreneurship is the implementation of entrepreneurial activities in violation of the law. The main criteria: lack of registration, violation of registration rules, lack of a license, provision of false information to the tax authorities.

Illegal activities, as a rule, are aimed at obtaining maximum profit, bypassing the tax authorities.

Each person sells something or provides services during the period of his life. It would seem that there is nothing illegal in the sale of used equipment, clothing, real estate. Someone can do a friend's hair at home or fix a car. But if you do it all the time, then it is illegal business.

The actions of one person will in no way affect the formation of the state economy, and if you bring all the illegal figures together, this causes considerable damage to the state and social sphere.

The law is one, non-compliance with it leads to criminal, administrative and tax liability, which is provided both for an illegally functioning large corporation, and for a person engaged in the systematic sale of vegetables on the market.

Types of illegal business activities

Illegal business is divided into three types:

Commercial activity without registration And . A person constantly carries out certain activities: provides services, sells products. Usually this is the only source of income, but no deductions are made to the tax authorities and the pension fund. The most striking common example is the rental of apartments by private individuals. Real estate is rented on a paid basis, but in tax office activity is not recorded.
Entrepreneurship without a license, if so provided by law. There are groups of goods and services for which you need to purchase a license: alcohol and tobacco products, cosmetic and medical services. The license costs a lot of money. Therefore, many entrepreneurs are engaged in business either without a license, at their own peril and risk, or provide services at home.
Conducting business activities in violation. For example, an entrepreneur submits documents to open one business, say, a store household chemicals, but actually opens a hairdresser or cafe. It happens that the address in the registration documents does not match the actual location of the production premises.

All this can be attributed to illegal business.

Complaints about illegal business

Everyone knows that you need to pay taxes, but deliberately refuse to do so. Many motivate this by saying that the taxes are too high, the income from the business is not constant, you need to somehow survive. Here it is necessary to divide illegal figures into two categories.

If a person sells children's things for a small price, for example, or sells a sweater knitted by oneself, this can hardly be called illegal activity. But if someone starts providing cosmetic services at home, without having the necessary conditions and appropriate registration, then this is already an illegal activity.

A complaint about illegal business can be filed with the Department economic security, the prosecutor's office, the police or the tax office. At the same time, you need to understand that words cannot be sewn into deeds, evidence is needed.

First, evaluate the scale of the deed. You should not run to the police or the tax office if your neighbor sold a bucket of potatoes on the market. But if a whole beauty salon has settled in one of the apartments, and there is no end to visitors, it is worth signaling to the relevant authorities.

If you yourself have become a victim of an illegal business: bought counterfeit products or used paid service, resulting in harm to your health, you can freely initiate a complaint with the tax office by providing checks and certificates.

Complaint to the tax office

If you have reason to file a complaint against an illegal businessman, you must write an application to the tax office. There is no established pattern. The application must include the following information:

Surname and initials of a person engaged in illegal business, and what is its violation. For example, the lack of a license.
What is the business: cosmetology, repair of objects, construction or other.
What time is the activity.
It is necessary to register a request for the intervention of the tax service.
A package of documents as evidence.

Important! The tax service will accept the application if you provide the fact that the entrepreneur received money. Perhaps you have a receipt, contract or a copy of the document.

Punishment for illegal business

Criminal prosecution regarding an illegal businessman, it most often occurs for repeated violations:

behind systematic occupation business without the necessary registration;
for receiving money from illegal business in especially large amounts;
for causing material damage to the state and citizens during illegal activities, or causing harm to health.

According to article 171 of the Criminal Code of the Russian Federation “Illegal business”, punishment occurs in the following cases:

If a businessman worked without registration and a license, as a result of which great damage was caused to the state, organization or citizens. The activist shall be punished with a fine of up to three hundred thousand rubles or compulsory work up to four hundred and eighty hours. In some cases, arrest is provided for up to six months.
For the implementation of the same activity by a group of persons, causing significant damage to the state or citizens, a businessman will be punished in the form of a fine of one hundred to five hundred thousand rubles, forced labor up to five years, imprisonment up to five years with a fine of eighty thousand rubles.

Additional Information. Article 171 of the Criminal Code of the Russian Federation is used extremely rarely, since it is very difficult to prove that an entrepreneur receives large incomes.

Other types of liability of individuals and legal entities

Criminal liability for an illegal act comes into force in the event of damage to the state or social society in the amount of one and a half million rubles and more. In all other cases, administrative liability arises and penalties are applied, the amount of which depends on the degree of violation:

If the entrepreneur does not register his activity, a fine in the amount of from five hundred to two thousand rubles.
For the implementation of activities without a license, a fine from two to fifty thousand rubles with the withdrawal of all products. The most widespread is the illegal sale of alcohol.
Violation of the terms of the license in the process of implementing a business entails a fine from one and a half to forty thousand rubles. For gross violation four to fifty thousand rubles with termination of activity up to 90 days.

What kind of punishment to apply is determined by the court. If the entrepreneur did not take care of acquiring a license to conduct his business, then such a violation is considered the most serious. In this case, serious damage to the health of consumers can be caused.

Administrative punishment is carried out not only for illegal work, but also for the use of other people's logos, copyright infringement, deception of buyers, and the sale of fakes. Get more information about the responsibility of the IP -.

Illegal business and tax services

The tax authorities apply penalties in the form of fines for the illegal activities of entrepreneurs, relying on articles 116 and 117 of the Tax Code. Many believe that if the profit from the systematic sale of products or services is minimal, then this is not punishable.

In reality, it looks quite different. If you, for example, implement via social media handmade products, and they send you cash on delivery for this, it is better to register yourself as an individual entrepreneur, otherwise you cannot avoid tax prosecution. The amount of the fine depends on the type of violation:

If the entrepreneur has not registered his activity with the tax office, then the amount of the fine is 10% of all income received by him, but not less twenty thousand rubles. Such punishment is applied to entrepreneurs who, at the time of the detected violation, had never filed an application for registration with tax authority.
If the illegal activity continues for more than ninety days, then the amount of the fine here will be 20% of all profits, but not less forty thousand rubles.
If during the inspection it turns out that the entrepreneur registered later than he began to operate in the business sector, a penalty for late registration is provided. Here the fact of receiving the first profit is established. For failure to register up to ninety days, the fine will be five thousand rubles over ninety days ten thousand rubles respectively.

The tax service, in addition to penalties, can make an additional accrual of lost taxes for the time of illegal work. A businessman will be forced to pay income tax on the entire amount that the tax authorities could prove. Penalties for missed tax payments and a penalty for non-payment of them will be 20% of the amount of additional accrued profit.

Important! The tax service has the right to charge fines and penalties, and the punishment is established by a court decision on the basis of current legislation.

What is important to know about illegal business (video)

Let's watch a short video where an experienced lawyer talks in detail about the illegal activities of citizens and gives examples. What are the consequences and punishment for an entrepreneur for illegal activities:

Taxes on business income are quite high today. Many entrepreneurs after paying taxes remain at a loss, so they work without registration. You need to understand that sooner or later you will have to pay not only taxes, but also fines. Before starting any business, calculate everything in advance, and do not delay registration.

The direct object of this crime is the procedure established by law for the implementation of entrepreneurial activity.

The objective side is characterized by the following alternative acts:

1) carrying out entrepreneurial activities without registration.

Entrepreneurial

activity 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 an entry on the creation of such a legal entity or the acquisition by an individual of the status of an individual entrepreneur, or there is an entry on the liquidation of a legal entity or the termination of an individual's activities as an individual

entrepreneur;

2) carrying out entrepreneurial activities without a special permit (license), when such a permit is mandatory. When deciding whether a person's actions contain signs of carrying out entrepreneurial activities without a special permit (license) in cases where such a permit is mandatory, the courts should proceed from the fact that certain types of activities, the list of which is determined by Federal Law No. 128 of August 8, 2001 -FZ "On Licensing 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 it is necessary to obtain a special permit (license) arises from the moment the permit (license) is received or within the period specified therein and terminates upon expiration of its validity period (unless otherwise provided), as well as in cases of suspension or cancellation permits (licenses) (and. 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), also engages in other types of activities, which it, in accordance with founding documents and is not entitled to engage in an existing license, then such actions associated with the illegal implementation of other types of activities should be considered as
illegal entrepreneurial activity without registration or illegal entrepreneurial activity without a special permit (license) in cases where such permission is required.

In accordance with the Decree 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 on the presence in the actions of a person of signs of composition crime under Art. 171 of the Criminal Code of the Russian Federation, the courts should find out whether these actions correspond to those specified in and. 1 st. 2 of the Civil Code of the Russian Federation for signs of entrepreneurial activity, i.e. activities aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services, which is carried out independently at its 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 activities without forming a legal entity from the moment of state registration as an individual entrepreneur, and the head of a peasant (farm) economy - from the moment of state registration of a peasant (farm) economy. 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 has acquired residential premises or other real estate for personal needs or received it by inheritance or under a donation 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 law transaction received income (including in a large or especially large

size), his deeds do not entail criminal liability for illegal entrepreneurship. If the specified person evades paying taxes or fees on the income received, his actions, if there are grounds for this, contain signs of corpus delicti,

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

According to the construction of the objective side, the considered corpus delicti is formal-material. If the crime is characterized by the infliction of major damage, then such an offense should be considered material, and it is completed from the moment of infliction of major damage. In the event that the crime is characterized by the extraction of income on a large scale, then such an offense should be recognized as formal, and it is completed from the moment such income is received.

Income should be understood as proceeds from the sale of goods (works, services) for the period of illegal entrepreneurial activity without deduction of expenses incurred by the person associated with the implementation of illegal entrepreneurial activity.

However, when qualifying crimes as illegal business, determining the amount of income received causes 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, excluding costs. However, in law, this concept of income was retained in relation to income tax. In other cases, income is understood as profit, i.e. cash receipts received as a result of entrepreneurial activity, in the part exceeding expenses.

In the criminal law sense, the concepts of "profit" and "income" are identical, which is reflected in the special literature 1 .

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

This approach to solving this issue caused controversy in the theory of criminal law. Many authors (A.E. Zhalinsky, N.A. Lopashenko, T.D. Ustinova and others) in their interpretation agreed with the concept of income from illegal business activities given by the Supreme Court of the Russian Federation. Others, such as P.S. Yann, S. Wasendin, B.V. Volzhenkin did not agree with this interpretation.

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

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

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

Despite the discussion 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 proceeds from the sale of goods (works, services) for the period of illegal entrepreneurial activity without deduction of expenses incurred by the person associated with the implementation of illegal entrepreneurial activity. The Supreme Court adopted a definition of income close to that used for taxation purposes (Article 249 of the Tax Code of the Russian Federation: “sales income is recognized as proceeds from the sale of goods (works, services) as own production, and previously acquired, 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 derived by all its participants.

The current criminal law does not provide guidance on how the damage can be expressed
from illegal business. There is no unambiguous understanding of the damage in illegal business and in the legal literature. With this element of the 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, lost profits by other entrepreneurs 1 .

Some authors consider the proposed interpretation of damage in illegal business to be unreasonable, since, in their opinion, it is of an expansive nature. From their point of view, only non-payment 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 entrepreneurship, the damage is usually expressed 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, the specified harm may occur as a result of the consumption or use of goods that were the product of illegal entrepreneurship and have design, prescription or other defects. In these cases, the preliminary investigation bodies will need to establish a causal relationship between the listed consequences and the committed illegal business.

Depending on the size of the extracted income, illegal entrepreneurship is carried out

delimitation of this criminal act from
administrative offense, but how to qualify an act when illegal entrepreneurial activity was stopped at a time when its subject did not intend to stop its activities yet, but the income earned by him is 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 its nature is among the ongoing crimes. The end point of continued 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, in the theory of criminal law, an approach has been developed according to which qualification is carried out depending on the purpose of the ongoing crime, the specificity or

lack of specification of the intent 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 in the event that 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 have been
extracted if the illegal business activity had not been suppressed.

An analysis of the studied criminal cases also indicates that the suppressed illegally carried out entrepreneurial activity, in which its subject derived income on a large scale, in some cases qualifies as an attempt on illegal entrepreneurship, committed with the extraction of income on an especially large scale.

According to N.F. Kuznetsova, in case of illegal entrepreneurship, until the moment of earning income on an especially 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 qualification option is possible only if the preliminary investigation authorities prove that the perpetrator intended to derive income from illegal entrepreneurship on an especially large scale, then his actions should be qualified as an attempt on illegal entrepreneurship with the extraction of income in especially large size.

In fairness, 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 Art. L.S. Aistova gives an example from judicial practice, when, in her opinion, the actions of the perpetrator were incorrectly qualified as an attempt on illegal business with the extraction of income on an especially large scale.

B., not being a private entrepreneur, purchased 8,400 liters of ethyl alcohol from persons not identified by the investigation in North Ossetia, with the aim of reselling it in other regions 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 an especially large scale. We must not forget that objective imputation in domestic criminal law is not permissible. Despite the fact that the perpetrator managed to sell 1000 liters of alcohol, his intent was directed to the sale of 8400 liters of alcohol.

Law enforcement practice on illegal business is characterized by its

inconsistency. An analysis of the materials of criminal cases shows that in some cases the commission of one major transaction is recognized as illegal.

entrepreneurship, while others do not. There is no unity on this issue in the theory of criminal law. Some scholars believe that the commission of 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 norms of Art. 171 of the Criminal Code of the Russian Federation [C].

So, in one of the districts Vologda region was convicted of illegal business K., who received large-scale 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 large-scale income from the resale of a large batch of lumber, since, as the investigator emphasized, the transaction was a single one.

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

The answer to this question, 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. It follows from the context of this letter that the law connects the need to register an individual as an individual entrepreneur with the implementation of a special kind of activity by him, and not just with the commission of transactions for compensation. The mere fact that a citizen makes transactions on a reimbursable basis for recognizing a citizen as an entrepreneur is not enough if the transactions he makes do not form an activity. As criteria for doing business, the Ministry of Finance of the Russian Federation, in particular, indicates the manufacture or acquisition of property for the purpose of subsequent profit from its use or sale; economic accounting of operations related to the implementation of transactions; the interconnectedness of all transactions made by a citizen in a certain period of time; stable relations with sellers, buyers, other contractors.

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, which establishes administrative responsibility for the implementation of entrepreneurial activities without state

registration as an individual entrepreneur, it is explained that “... individual cases of the sale of goods, the performance of work, the 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 assortment, volumes of performed works, services rendered and other circumstances do not indicate that this activity was aimed at systematic profit making” 1 .

In and. 2 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 who was not registered as an individual entrepreneur acquired residential premises or other real estate for personal needs or received it by inheritance or under a donation 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 law transaction has received income (including on a large or especially large scale), his deeds do not entail criminal liability for illegal entrepreneurship.

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 qualifying these actions as illegal entrepreneurship.

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

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

entrepreneurship. For example, in some shops that legally sell weapons, you can buy them illegally, handicrafts, etc.

There are cases when individual doctors on the basis of an inpatient or polyclinic department launch activities for the illegal provision of paid medical services.

Fraudsters under the guise of traditional healers systematically gather huge audiences for, for example, mass healing sessions.

The listed types of activities in the systematic extraction of profit in their content characteristics will fully comply with the definition of entrepreneurship. They will not only 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, along with this, be qualified in conjunction with the norms of Art. 171 of the Criminal Code of the Russian Federation, if they caused large damage or brought income in the amount not lower than large.

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

One of the district courts Oryol region convicted under Art. 171 of the Criminal Code of the Russian Federation in relation to E., who, without a license to transport by road, entered into an employment agreement with a food processing plant on employment as a driver and on his car, at the direction of the management of the said enterprise, transported various goods.

This verdict was overturned. In its decision, the Presidium of the Oryol Regional Court indicated that E.'s activities in the said 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 take risks in case of shortage or damage to the goods (which, as can be seen from the case file, was accountable to other persons during transportation), various types of deductions were made from his salary by the accounting department (income tax, deductions to the pension fund) , was kept a schedule for recording his working time. Consequently, E.'s actions do not contain signs of entrepreneurship, therefore, a special permit (license) for the transportation of goods under such circumstances was not required 1 .

2. The same act:

a) committed by an organized group;

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

c) has expired. - Federal Law of 08.12.2003 No. 162-FZ

Part 1 Art. 171 of the Criminal Code of the Russian Federation provides for liability for illegal business, i.e. carrying out entrepreneurial activities without registration or in violation of the registration rules, as well as submitting documents containing deliberately false information to the state registration body of legal entities and individual entrepreneurs, or carrying out entrepreneurial activities without a license in cases where such a license is required, if this act caused large damage to citizens, organizations or the state, or is associated with the extraction of income on a large scale.

According to official data on crime registration, illegal entrepreneurship is one of the most common crimes in the field of economic activity. So, in 1997 it was recorded (together with the qualified compositions provided for in part 2 of article 171 of the Criminal Code of the Russian Federation) 3882, in 1998 - 5306, in 1999 - 6415, in 2000 - 8538, in 2001 - 7428, in 2002 - 4972, in 2003 - 1999, in 2004 - 942, in 2005 - 2716, in 2006 - 3200, in 2007 - 3340, in 2008 - 3267 such crimes. In fairness, it should be noted that the "survivability" of the crimes in question is to a certain extent generated by the serious shortcomings of the current legislation in the field of entrepreneurial activity. In this regard, there are three types of reasons that can force an entrepreneur to violate the criminal law.

First, as the President of the Russian Federation V.V. Putin, this is "excessive state intervention", i.e. regulation of the economy, including entrepreneurial activity. At a press conference in the Kremlin on July 18, 2001, he pointed out that until recently there were approximately 500 business licensing positions (slightly more than 100 remained).

Secondly, until 2001, taxes imposed by the state actually made it unprofitable to engage in entrepreneurial activity, and in this regard, entrepreneurship went into the “shadow” and fed the shadow economy (at present, a more liberal tax policy is being pursued, but how much time for successful development small and medium businesses missed).

And thirdly, corruption in the executive authorities that carry out registration or licensing of business activities. Thus, according to a sociological survey, 78% of law enforcement officers surveyed believe that an entrepreneur cannot do without paying officials for obtaining a license (29% considered that they pay in isolated cases, 17% - from time to time and 32% - constantly).

object this crime is the normal procedure for the implementation of legitimate business activities.

The meaning of establishing criminal liability for violation of the procedure for carrying out entrepreneurial activity lies in the fact that such a violation primarily affects the financial interests of the state (it does not receive the duty due for payment during registration, the registration fee, the fee for considering an application and for issuing a license; it becomes difficult receipt of taxes due from individual entrepreneurs, and in fact no taxes are received from legal entities); secondly, illegal entrepreneurship can cause damage to citizens and organizations (for example, to the health of citizens, the interests of public morality).

US criminal law (both federal and state) does not know the independent structure of illegal business in the Russian sense. Criminal liability is established there only for certain cases fraudulent business practices. So, for example, in the Model Criminal Code of the United States in Art. 224.7 establishes liability for fraudulent methods of commercial activity (the content of the latter will be analyzed when characterizing the relevant crimes). It should be noted that the rules on liability for illegal entrepreneurship as such (i.e., carried out without registration or special permission - licenses) are also absent in the criminal legislation of the developed market countries of continental Europe (for example, in the Criminal Code of France, Germany, Spain). It seems that this is not accidental. For a developed market economy, the problem is not the registration of a business, but its fraudulent methods, as well as incorrect information submitted by the entrepreneur to the relevant authorities (the latter is directly related to the commission of various kinds of tax crimes).

Usually, the need to criminalize illegal entrepreneurial activity is motivated by the fact that its registration is established in civil law, the need to prevent "the actual transition of entrepreneurial activity into the sphere of illegal, or" shadow "economy and, accordingly, its exit from the sphere of state control, which, as a rule, entails failure to fulfill the legal obligations of the entrepreneur to the state and the citizen" 1 Commentary on the Criminal Code of the Russian Federation. Special part / ed. Yu.I. Skuratov and V.M. Lebedev. M., 1997. S. 167.. In part 1 of Art. 2 of the Civil Code of the Russian Federation does say: “Civil law regulates relations between” persons engaged in entrepreneurial activity, or with their participation, based on the fact that entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically making a profit from the use of property, the sale of goods performance of work or provision of services by persons duly registered as such e" (emphasis mine). Article 51 of the Civil Code of the Russian Federation establishes the obligatory state registration of legal entities, including commercial organizations, and Art. 48 of the Civil Code of the Russian Federation - licensing of certain types of activities. However, in our opinion, it does not at all follow from these civil law regulations that their violation should be supported by a criminal law prohibition. Both the meaning of this norm of civil law and the legal sanctions for its violation are completely different, quite clearly defined in the civil legislation itself. So, in part 4 of Art. 23 of the Civil Code of the Russian Federation states that a citizen engaged in entrepreneurial activity without forming a legal entity in violation of the rules for registering entrepreneurial activity is not entitled to refer to the transactions concluded by him at the same time that he is not an entrepreneur, and that the court may apply the rules to such transactions Civil Code of the Russian Federation on obligations related to the implementation of entrepreneurial activities. In part 3 of Art. 401 of the Civil Code of the Russian Federation, the last provision is specified as follows: “Unless otherwise provided by law or an agreement, a person who has not performed or improperly performed an obligation in the course of entrepreneurial activity shall be liable unless he proves that proper performance was impossible due to force majeure, i.e. e. extraordinary and unavoidable circumstances under the given conditions. Such circumstances do not include, in particular, violation of obligations by the debtor's competitors, absence of the goods necessary for execution on the market, absence of the necessary funds from the debtor.

It seems that this norm of civil law reveals the whole meaning of the need to register business activities, which has nothing to do with the justification of criminal liability for violation of registration rules. The new Civil Code of the Russian Federation is a code of a market economy that stimulates any legitimate entrepreneurial activity. State registration of such activities means that the state provides legal protection for this activity and the person (both natural and legal) enjoys all the rights and benefits provided by civil law. On the contrary, a person who has not fulfilled this condition (state registration) does not have these rights and benefits. And even if an unregistered entrepreneur is swindled by his competitor, in case of non-fulfillment (or improper fulfillment) by the first of his obligations in the course of entrepreneurial activity, the victim cannot count on the legal protection of the state. It exists only for a legitimate entrepreneur. And if someone does not want to play by the rules set by the state, he must rely only on himself.

In the same vein, the requirements of Part 1 of Art. 23 of the Civil Code of the Russian Federation that a citizen has the right to engage in entrepreneurial activities without forming a legal entity from the moment of state registration as an individual entrepreneur. Yes, the Civil Code of the Russian Federation recognizes such activities as illegal, but this does not contain even a hint of the need for criminal law regulation of the specific civil law relations under consideration. Civil law prohibits such activities, as it introduces confusion into civil law relations in the field of entrepreneurship, but this is not at all a reason for declaring these relations (interests) as the sphere of criminal law. Textbooks on the Special Part of Criminal Law and comments on the Criminal Code of the Russian Federation, when justifying the criminalization of illegal entrepreneurship in the Criminal Code of the Russian Federation, emphasize that the criminal law (part 1 of article 171 of the Criminal Code of the Russian Federation) links liability with causing major damage to citizens, organizations or the state , or with the extraction of income on a large scale. However, both compensation for damages and countering unjust enrichment fit well into the framework of civil law relations.

There is another aspect of this problem, a purely Russian one. The registration and licensing procedure for carrying out entrepreneurial activities, as already noted, is an inexhaustible source for the illegal enrichment of officials of various ranks who carry out such registration or licensing. In addition, the number of types of activities subject to licensing in the Russian Federation (this has also been already mentioned) has been unreasonably large until recently (for example, only one normative act"- Decree of the Government of the Russian Federation of December 24, 1994 No. 1418" - the list of activities for which a license is required, and the bodies authorized to conduct licensed activities, consisted of more than 80 positions).

Based on the foregoing, in our opinion, it is quite possible to talk about the decriminalization of acts under Art. 171 of the Criminal Code of the Russian Federation. And at the same time, in order to suppress the most dangerous manifestations of this kind of activity, such criminal legal means remain in force as the application, in appropriate cases, of criminal law norms on liability, for example, for tax crimes (Articles 198 and 199 of the Criminal Code of the Russian Federation), illegal use of commercial mark (Article 180 of the Criminal Code of the Russian Federation), forgery" of documents (Article 327 of the Criminal Code of the Russian Federation).

objective side crimes under Part. 1 Article. 171 of the Criminal Code of the Russian Federation, is characterized by actions, consequences and a causal relationship between them. As alternative actions, the criminal law calls: 1) carrying out entrepreneurial activities without registration or in violation of registration rules; 2) submission to the body that carries out state registration of legal entities and individual entrepreneurs, documents containing deliberately false information; 3) carrying out entrepreneurial activities without a license in cases where such a license is required.

As a consequence of Part 1 of Art. 171 of the Criminal Code of the Russian Federation calls: a) causing major damage to citizens, organizations or the state by an act; b) extracting income on a large scale.

The concepts of registration and licensing of entrepreneurial activity, as well as violations of the terms of licensing, were given when characterizing the composition of obstruction of legal entrepreneurial activity, provided for in Art. 169 of the Criminal Code of the Russian Federation.

Large size income from illegal business is defined in the note to Art. 169 of the Criminal Code of the Russian Federation. They recognize income, the amount of which exceeds 1 million 500 thousand rubles. True, such a specification of a large amount of income did not resolve the controversial issue in the theory of criminal law and judicial practice about the concept of income from entrepreneurial activity. In economic theory, the concepts of income and profit are distinguished. Income refers to financial receipts from all activities of the entrepreneur. Under profit - only part of the income, calculated minus the costs incurred (expenses for wages employees, rent, fuel, components, depreciation, etc.).

Initially (after the entry into force of the Criminal Code of the Russian Federation) arbitrage practice most often, income from illegal entrepreneurial activity was also understood as the entire amount of proceeds received by the entrepreneur, without taking into account the costs that he incurred in doing so. However, later the RF Armed Forces took a different position.

For example, the Presidium of the Supreme Court of the Russian Federation in its decision in the case of K. was based on Art. 12 of the Law of the Russian Federation of December 7, 1991 No. 1998-1 "On income tax from individuals", establishing that when calculating income tax on income received from entrepreneurial activity, documented and actually incurred expenses are subject to exclusion, indicated that the provided disposition of Part 1 of Art. 171 of the Criminal Code of the Russian Federation (illegal entrepreneurship), the qualifying sign of this corpus delicti - deriving income on a large scale - is the benefit received from illegal entrepreneurial activity, minus the costs associated with its implementation.

This approach to solving this issue caused an ambiguous attitude in the theory of criminal law. Many authors (A.E. Zhalinsky, N.A. Lopashenko, T.D. Ustinova, V.I. Tyunin and others) in their interpretation of the concept of income from illegal entrepreneurial activity proceeded from the same understanding (some of them regardless of the position of the RF Armed Forces). Others, such as P.S. Yani, B.V. Volzhenkin did not agree with this interpretation. P.S. Yani justified his rejection of such a position by referring to the RF Armed Forces on tax legislation, which, in his opinion, is so contradictory that it allows, turning to him, to argue a decision that is directly opposite 2 See: Yani P.S. Income from illegal business: a controversial decision of the Supreme Court // Criminal Law. 1999. No. 1. S. 44-46..

B.V. Volzhenkin criticized this position, taking into account his understanding of the dangers of illegal entrepreneurial activity. “Any entrepreneurship is controlled by the state by establishing state registration, licensing certain types of activities, establishing a number of conditions in the license. The danger is not the enrichment of the entrepreneur, not the profit he received (this was forbidden in the Soviet period - speculation, private entrepreneurial activity, commercial mediation), but that he evades established control. And if it causes major damage to citizens, organizations or the state, or is carried out on a significant scale, in a significant amount, criminal liability for illegal entrepreneurship arises. The volume, the scale of illegal (unregistered, unlicensed, in violation of licensing conditions) activities of an entrepreneur are determined by the amount of income received without taking into account the expenses incurred by the entrepreneur in the course of this activity. 3 Russian criminal law: a course of lectures. T. IV: Crimes in the sphere of economy. pp. 223-224..

However, these arguments seem to us far from indisputable. First, as already noted, a violation of the rules for state registration or licensing of certain types of activities established in civil (and administrative) legislation is not yet a basis for criminalizing the relevant violations. A criminal law norm with blanket dispositions never provides for a criminal law sanction for the very violation of a norm of another branch of law, but necessarily connects the criminal wrongfulness of an act with some additional circumstance (condition, sign) that increases the danger of the corresponding violation to public danger as a mandatory sign forming the concept of crime. Therefore, B.V. Volzhenkin was right when he said that if registration (licensing) evasion “causes major damage to citizens, organizations or the state”, then criminal liability for illegal entrepreneurship comes. And in this case, therefore, the crux of the matter lies not in the indicated evasion, but in the presence of an additional feature, which (and only which) makes such evasion criminal and punishable. Secondly, having proved the fallacy of the position of the Supreme Court of the Russian Federation on the issue under discussion, the author made the following conclusion: “In general, the criminalization of entrepreneurial activities carried out without registration or without a special permit (license) or in violation of licensing conditions, when this activity did not cause damage, but only only led to the receipt of income on a large scale, is highly doubtful. In such a case, it would be quite possible to get by with administrative and financial measures against the violator.” This is correct, but why, then, to prove the fallacy of the position of the RF Armed Forces, which also did not recognize the composition of illegal entrepreneurship in this case?

Unfortunately, in its resolution of November 18, 2004 No. 23 “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of money or other property acquired by criminal means”, the Plenum of the Supreme Court of the Russian Federation returned to its original position, understanding in Art. . 171 of the Criminal Code of the Russian Federation under income proceeds from the sale of goods (works, services) for the period of illegal entrepreneurial activity without deducting the costs incurred by the person associated with the implementation of such activities.

Personally, such a recommendation reminded us of one of O'Henry's stories, which describes in a humorous manner the attempt of a North American Indian to enter the trading business. With the help of his white-skinned "mentor", he acquired the necessary goods and began trading in them. His mentor discovered that he would sell the item he bought (they bought it together) for the same price at which the item was purchased. To the mentor's remark that this is not how they trade, the novice "businessman" replied that it would be dishonest to sell goods at an increased price and he could not do that.

Let us concretize this clarification (Resolution of the Plenum of the Supreme Court of the Russian Federation of November 18, 2004 No. 23) in relation to a quite typical (ordinary for illegal business) situation. Suppose a certain person without registration opens a trade in furniture produced and purchased by him in Turkey (it’s not good, of course, that without registration, but even the President of the Russian Federation once officially, at a meeting of the Government of the Russian Federation, said that an entrepreneur who registered his enterprise deserves to be awarded an order Courage; it turns out that our hypothetical entrepreneur is not courageous enough). Naturally, at the same time, he incurs significant costs: a trip to Turkey, the purchase of furniture, sending it to Russia, transportation costs for the delivery of furniture to his store, payment for hired sellers, payment for renting a commercial space, payment for electricity, etc., etc., etc. .P. All these are official expenses, but there are also unofficial ones (on customs clearance of cargo at customs officers, building “bridges” with fire supervision, sanitary and epidemiological supervision and other supervision). But God is with them, with unofficial ones (no one has yet canceled corruption and is unlikely to cancel it in the foreseeable future). In accordance with the Criminal Code of the Russian Federation, large-scale income at the time of the adoption of the decision of the Plenum of the Supreme Court of the Russian Federation under consideration was recognized as income in excess of 250 thousand rubles, i.e. at the current exchange rate, just over $9,000. Let's say that our illegal businessman spent $10,000 on buying and selling goods and managed to sell it for $5,000 of the same "green". According to the authoritative Plenum of the Supreme Court, his income amounted to 15 thousand dollars, and therefore, he is a criminal. Well, how can I not remember O'Henry here. This is not how it should have been traded, not like that. It's not fair: I bought a sofa in Turkey for $50, and sells it for $250!

The concept of major damage is specified in the note to Art. 169 of the Criminal Code of the Russian Federation. They are damage exceeding 1 million 500 thousand rubles. However, this specification does not remove all the difficulties of qualification. Thus, in the theory of criminal law and judicial practice, efforts are being made to address at least three aspects of the definition of the concept of major damage from entrepreneurial activity. First, should it be understood only as property damage or much broader, including, for example, infliction of grievous harm to the health of citizens. Secondly, should it be understood only as real damage or should it also include lost profits. And thirdly, the concretization of such damage in material (monetary) terms.

With regard to the first aspect, it should be noted that some authors believe that the concept of major damage from illegal entrepreneurship also covers the infliction of harm to the health of citizens. Others take a different position on this issue, and, in their opinion, if, as a result of illegal entrepreneurial activity, a citizen is intentionally or negligently inflicted serious or moderate harm to health, the deed should be qualified according to the totality of crimes. It seems that this point of view is correct, based, firstly, on the understanding of the main object of illegal entrepreneurship as an economic crime and the interpretation of the concept of major damage traditional for the theory of criminal law, and secondly, on the basis of the traditional for the doctrine of criminal law and judicial practice, accounting for additional object (which in case of illegal business is causing harm to health) when qualifying crimes. So, A.P. Zherebtsov rightly, in our opinion, believes that physical harm cannot be considered a criminal consequence of illegal entrepreneurship, since “the legislator, when constructing the composition of Art. 171 of the Criminal Code used the term “major damage”, which in the theory of criminal law and in practice is understood as a property consequence of a crime, in contrast to the concept of “serious consequences”, which can be formed both by material damage and physical harm” 4 Zherebtsov A.P. Problems of the conditions of liability for violation of the procedure for the implementation of entrepreneurial activity: author. dis.... cand. legal Sciences. Ekaterinburg, 1998. S. 15.. And if causing harm to an additional object forms an independent crime, the deed is usually qualified according to the totality of crimes. The same is true in the case under consideration. Intentional or negligent infliction of serious or moderate harm to the health of a citizen from illegal entrepreneurship is additionally qualified under the relevant articles of the Criminal Code of the Russian Federation, providing for liability for crimes against health (Articles 111, 112, 118) or for the production, storage, transportation or sale of goods and products , performance of work or provision of services that do not meet safety requirements (Article 238).

As for the second aspect, when the Criminal Code of the Russian Federation was put into effect, judicial practice initially experienced difficulty as to whether the legislative construction of the concept of major damage meant only real damage, or, in addition to it, lost profits should also be taken into account. In theory and judicial practice, on the basis of civil law norms, the second point of view has become widespread (in our opinion, quite rightly). So, in accordance with Part 2 of Art. 15 of the Civil Code of the Russian Federation, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right; loss or damage to his property (actual damage); as well as unearned income that this person would have received under normal conditions of civil circulation if his right had not been violated (lost profit). Of course, such an approach is not only quite acceptable, but also fair for the issue under consideration.

Unlike the concept of income on a large scale, the concept of major damage in illegal entrepreneurship is not specified in the criminal law itself. In this regard, in the theory of criminal law, in this regard, different offers. So, B.V. Volzhenkin believed: if we have in mind the damage caused by non-payment of duties, fees, taxes in illegal entrepreneurship, then, when resolving the issue of major damage caused to the state, in the case of individual illegal entrepreneurship, it is advisable to focus on the concept of major damage when a citizen evades taxes (Art. 198 of the Criminal Code of the Russian Federation), i.e. 200 minimum wages that existed at the time of the commission of the act, and in the case of illegal business activities of the organization - on the concept of a large amount of tax evasion from organizations (Article 199 of the Criminal Code of the Russian Federation), i.e. 1000 minimum wage 5 See: Volzhenkin B.V. economic crimes. SPb.. 1999. S. 91-92..

In accordance with another point of view, the amount of major damage caused to citizens from illegal entrepreneurship should be calculated by analogy with the major damage caused by the theft of other people's property, i.e. if it is 500 times the minimum wage, and if it is caused to an organization, then it depends on its authorized capital, profit and other conditions 6 See: Korchagin A.G., Ivanov A.M., Shcherbakov A.V. Economic crimes (political and legal aspects). Vladivostok, 1999, p. 130.. Several other, although also different for citizens and organizations, criteria for determining property damage from illegal entrepreneurship are proposed: for the first, this is the monthly budget of the victim or the family that he supports or is a member of; for the second criteria are commensurate with the size working capital enterprises or organizations (but the amount should not be less than 2000 minimum wages) 7 See: Criminal law of the Russian Federation: textbook / ed. B.V. Zdravomyslova. M., 1999. S. 191 (the author of the stave is V.E. Melnikova).. In the literature, the opinion has also been expressed that large-scale damage (understood as property damage) should be determined regardless of to whom it was caused, and its size should also be correlated with the large amount of theft and be at least 500 minimum wages. 8 See: Criminal law. Special part: textbook for universities / resp. ed. AND I. Kozachenko, Z.A. Neznamova, G.P. Novoselov. M., 1999. S. 272, 275 (the author of the chapter is T.Yu. Pogosyan)..

With all the scatter of opinions expressed on the issue under discussion (and they, of course, are not limited to the above), in our opinion, it should be recognized the right approaches, which, when determining large property damage from illegal business activities, must take into account the following features. Firstly, who suffers major damage: citizens, organizations or the state. And secondly, who causes this damage. Both entail a fundamentally different calculation of such damage (for example, when causing damage to the state, one can be guided by analogues that exist for tax crimes; organizations - by the size of its working capital; citizens - by their property status). Ultimately, the concept of major damage in any case remains an evaluative concept, and its exact calculation will be done when considering a specific criminal case, taking into account the indicated features.

Subject crime under Art. 171 of the Criminal Code of the Russian Federation, is a person who has reached the age of 16. This not only meets the requirements of Art. 20 of the Criminal Code of the Russian Federation on the age of criminal responsibility, but also Art. 27 of the Civil Code of the Russian Federation. The latter determines that a minor who has reached the age of 16 may be declared fully capable if he works under an employment contract, including under a contract, or, with the consent of his parents, adoptive parents or guardian, is engaged in entrepreneurial activities. Thus, it is both theoretically and practically possible that a minor who has reached the age of 16 is engaged in entrepreneurial activity. Although, of course, in real practice (we are talking about judicial practice in cases of illegal business), such cases, if they occur, are extremely rare, and usually the subjects of this crime are persons who have reached 18 years of age and older.

Subjective side the crime in question is characterized deliberate form of guilt. The person is aware that he is engaged in business activities without registration or without a license or in violation of the conditions of licensing, and wishes to do so. At the same time, the guilty attitude towards causing major damage to citizens, organizations or the state is characterized by the fact that the person foresees the onset of such a consequence and wishes or consciously allows it or is indifferent to it. In relation to the extraction of income from illegal entrepreneurial activity on a large scale, there is an awareness by the subject of this and, as a rule, a desire to extract such income.

Part 2 Art. 171 of the Criminal Code of the Russian Federation provides for increased liability for illegal entrepreneurship committed: a) by an organized group; 6) with the extraction of income on an especially large scale. When defining the concept of an organized group engaged in illegal business, one should proceed from the requirements of Part 3 of Art. 35 of the Criminal Code of the Russian Federation (a crime is recognized as committed by an organized group if it is committed by a stable group of persons who have previously united to commit one or more crimes; the concept of a stable group was considered when characterizing the murder provided for in paragraph "g" part 2 of article 105 of the Criminal Code of the Russian Federation) .

under the income extra large size in accordance with the note to Art. 169 of the Criminal Code of the Russian Federation is understood as income, the amount of which exceeds 6 million rubles.

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