Provided in Art. 171 of the Criminal Code of the Russian Federation implies an encroachment on the procedure established by legislation for economic entities. The standard defines the mandatory conditions under which criminal liability occurs. In case of their absence, the guilty party faces only administrative punishment.
The composition of Art. 171 of the Criminal Code
The norm establishes the punishment for the functioning of an economic entity without a license, if it is obligatory, and without registration. Mandatory conditions for bringing to justice are:
- Causing major harm to organizations, the state or citizens.
- Extract a large amount of profit.
For imputation of punishment under art. 171 of the Criminal Code requires at least one of these conditions to be met. Guilty while facing:
- A fine of up to 300 thousand rubles. or in the amount of income for the period up to 2 years.
- The arrest lasting up to six months.
- Mandatory work up to 480 h.
The norm provides for 2 grounds on which penalties for illegal entrepreneurship are increased. Art. 171 of the Criminal Code of the Russian Federation establishes the commission of an act as:
- An organized group.
- Accompanied by the extraction of income in an amount considered particularly large.
In these cases, the guilty face:
- A fine in the amount of 100-500 thousand rubles. or equal to the income for the year 1-3.
- Until 5 years of forced labor.
- Imprisonment for the same term.
By the last punishment, the court may additionally establish a fine of up to 80 thousand rubles. or equal to the income of convicts for six months.
Art. 171 CC RF with comments
The concept of the subject of encroachment is revealed in the explanations to art. 169 Code. When analyzing the signs of an action, the recommendations of the Plenum of the Supreme Court should be taken into account, data on the application of Art. 171 of the Criminal Code of the Russian Federation. Judicial practice in this norm takes into account the peculiarities of the investigation of cases related to the unlawful work of economic entities and the laundering (legalization) of income and property acquired unlawfully.
The act provided by art. 171 of the Criminal Code, characterized by five forms. All actions will be criminalized if one of the conditions listed in part one is met. Major damage and income is defined in the explanations to the article 169 Code. As profit when applying the provisions of Art. 171 of the Criminal Code of the Russian Federation should be understood revenue from the sale of services, products and works during the unlawful functioning of the enterprise without deducting the expenses incurred by the perpetrator. In determining the income derived by an organized group, it is necessary to proceed from the amount received by all participants.
The sun explained that if the register does not contain an entry about the creation of a legal entity or the acquisition by an individual of the status of an individual entrepreneur, but the subject carries out economic and financial operations, then his actions will be regarded as illegal business. Art. 171 of the Criminal Code of the Russian Federation provides for punishment for those who evade state registration, if its obligation is established by law. This procedure is a legal recognition of the legal form of the entity. He can act as a peasant farm, individual entrepreneur, legal entity (commercial enterprise).
If the perpetrators carry out activities prohibited by law, which cannot be registered, the responsibility is not provided for under art. 171, but for other standards. For example, the unlawful manufacture of weapons, explosive devices, ammunition, components for them entails punishment under article 223. There is no penalty under art. 171 of the Criminal Code of the Russian Federation for persons not registered in the status of individual entrepreneurs who purchased housing for personal needs or inherited property (under a deed of gift) and, by leasing the object, received income, in large or especially large amounts including. For such entities, liability may occur under the 198 article of the code.
Violation of the rules of state registration
An economic entity may be held liable under the provisions of Art. 171 of the Criminal Code of the Russian Federation, if, having a certificate for one type of work, performs another or in another place, or in another organizational-legal form. Violations of the rules of state registration are also considered cases when, when registering, obviously for the perpetrator, actions were performed that give grounds to recognize the procedure as invalid. For example, the subject submitted an incomplete set of documents. Violation of the rules will be considered and the continuation of work for the expired certificate. The submission to the authorized body of documentation, in which there are deliberately false data, indicates that the registration was obtained by fraud, and the state structure was misled by the papers, the falsification of which was revealed later.
For certain types of activities, legislation requires the subject to obtain permission. The licensing procedure is defined in Federal Law No. 128. The types of activities for which the permission is required must include those in which the rights, interests, health, moral condition of citizens, security and defense capability of the state are likely to be harmed. The actions of the entity providing medical services or carrying out pharmaceutical practice without a license, if they resulted in damage to the health or death of a citizen, are qualified according to Article 235 of the code. If the specified consequences did not arise, however, the work of the perpetrator was accompanied by the extraction of income in a particularly large or large amount, or caused harm to the state, physical persons or organizations, responsibility arises under Art. 171.
Licenses are issued for each type of work / service to registered subjects. The authorities authorized to issue permits may be local or regional authorities. The law establishes general licensing rules. This specifies the specific types of work, permission for which is issued exclusively at the federal level. Such activities include, in particular, the arms trade, all operations with precious metals and stones, psychotropic / narcotic compounds, and so on. At the same time, the types of work are identified, the permission for which production may be granted by the regional authorized bodies. These include medical, real estate, veterinary activities, the provision of services by petrol stations, etc.
As mentioned above, in the absence of at least one mandatory condition, the criminal penalty is not applied to the guilty person. In carrying out illegal business without state registration or a license or in violation of the requirements established in a special permit, without causing major harm, responsibility arises under Art. 14.1 CAO. The director of a legal entity or an individual entrepreneur, who submitted documents to the authorized body containing deliberately false information, in this case, is threatened with punishment under art. 14.25 (h. 4) KoAP.
The subjective part
Act is committed in the presence of direct intent. In this case, the motives of the perpetrator are always self-serving. The subject of the crime is a special person. It is represented by the head of the organization or individual entrepreneur evading a license or state registration. It is necessary to take into account that citizens, except for the director of the enterprise, who are in labor relations with a legal entity or individual entrepreneurs who work with violations of the law, are not liable under the norm in question if they performed the obligations established by the contract.
The second part of the article under review contains two aggravating circumstances. An explanation of the concept of an organized group is present in article 35, part of the 3 CC. The amount of damage is considered particularly large if its amount is more than 6 million rubles. When calculating the income received illegally by the group, it is necessary to proceed from the total value extracted by all participants. In this case, the costs incurred by them are not taken into account.
Set of crimes
If within the framework of the enterprise, actions are performed that contain signs of acts provided for in other articles, responsibility arises for all identified episodes. In particular, in the production, storage, acquisition, transportation for the purpose of subsequent sale or sale of unlabelled products by a entity that does not have state registration / license, the penalty is charged at the rate in question in conjunction with art. 171.1 of the Criminal Code of the Russian Federation. Similarly, a violation of the procedure for the manufacture and use of state-assisted stamps (article 181) or storage, production, sale of goods, production of works, provision of services that do not meet safety requirements (Art. 238) is qualified.
Difficulties in the differentiation of acts
In Art. 171.2 of the Criminal Code of the Russian Federation establishes responsibility for the unlawful conduct and organization of gambling outside the established zones. The actions of the subject in this case will be commercial in nature. In this regard, the activity must comply with the substantive features given in the 2 article of the Civil Code (Section 1). From this it follows that, if such actions are not aimed at systematically earning income, but imply the commission of one-off transactions, they do not constitute the crime of Art. 171.2. Therefore, the qualification of the act should be carried out under other articles of the code. If one or several transactions are identified, according to the results of which a profit in the amount not reaching a large one is obtained, the guilty person is held accountable for articles 171 (h. 1) and 33 (h. 3) if his intention was to extract more income.