Today, more and more people are starting to engage in any business, large or not very. Before you start your own production or provision of services, you must register with the tax service as a legal entity or individual entrepreneur.
However, not everyone, wanting to benefit from their own business, undergo this procedure. Therefore, we are talking about illegal business, for which the owner bears both administrative and criminal liability.
About the law
The Criminal Code addresses the conduct of business without registration or without a license. Thus, if the entrepreneur is already a tax agent, but carries out activities without special permission, this is also punished to the fullest extent of the law (article 171 of the Criminal Code of the Russian Federation).
Types of business where a license is required is indicated in a special law adopted in this regard. For example, special permission is required when conducting banking activities, during the implementation of the turnover of fuels and lubricants and other similar forms of doing business. This is necessary in order to protect the market from dishonest businessmen, since licensed activities imply special control over the actions of these enterprises.
Violations
Thus, if a citizen decided to engage in entrepreneurship (activities involving the systematic receipt of any income), then he needs to register with the tax office at the location of the enterprise and / or obtain a license.
In the event that it is revealed that there is neither one nor the other, the activity falls under the description contained in Article 171 of the Criminal Code of the Russian Federation - illegal business. Depending on how many people participated in this and what size of profit the businessman has already managed to extract, a sentence is imposed.
Crime and Punishment: Article 171, Part 1 of the Criminal Code
Part 1 of this provision states that if the activities of such a company entailed major damage or are associated with the receipt of income in such quantities, the following types of punishments may be applied:
- a fine of up to 300 thousand rubles .;
- obligatory work up to 480 hours;
- arrest up to 6 months.
Part 2
In addition, article 171 of the Criminal Code of the Russian Federation also provides for a crime committed by several persons according to a previously developed plan or without it, but with the infliction of especially serious damage. The punishment for such an activity is as follows:
- a fine of up to 500 thousand rubles;
- forced labor up to 5 years;
- Imprisonment of up to 5 years with a fine of up to 80 thousand rubles.
These sanctions are contained in Article 171, Part 2 of the Criminal Code of the Russian Federation.
Amendments
Here it can be noted that any activity that is associated with obtaining a steady income, even if the guilty person has managed to complete only one transaction, is illegal. Nevertheless, the new edition of Article 171 of the Criminal Code of the Russian Federation provided for exemption from criminal liability if the act was committed for the first time, the citizen has no criminal record and compensated all the damage caused or voluntarily turned the income in favor of the state.
The changes affected several articles, but with regard to release, it is provided for crimes of a simple composition, without aggravating circumstances (as article 171, part 1 of the Criminal Code of the Russian Federation).
Regarding the amount of damage or the profit made, we can say that the amount that the entrepreneur received is subject to control. This includes those expenses that the businessman incurred in organizing his business.
For example, if the owner of a gas station gained a certain amount, and then bought fuel and paid a salary to employees, then the amount of finance before expense transactions is taken into account.
Food
In addition to the actual crimes provided for in article 171 of the Criminal Code of the Russian Federation (illegal entrepreneurship), especially "advanced" businessmen do not stop there. That is, there is another type of illegal business when the organization is registered or even has a license, but there are problems with the goods.
Article 171.1 of the Criminal Code expressly states that if a legal or natural person (does not matter) transports, buys or accepts, and also stores or sells goods without marking, this is considered a crime.
As some activities are subject to licensing, many consumer goods are subject to certification and special labeling.
Separately, the turnover of food, alcohol and tobacco products is described in article 171.1, parts 3-6.
In the event that a businessman makes a turnover of products without mandatory information on the product itself or does not label, the punishment will be of the following types:
1. Large size:
- a fine of up to 400 thousand rubles;
- forced labor activity up to 3 years;
- The term in a correctional institution is up to 3 years, plus a fine of up to 80 thousand rubles .;
2. Extra large size:
- a fine of up to 700 thousand rubles;
- forced labor up to 5 years;
- serving a preventive measure in a colony of up to 6 years with a fine of up to 1 million rubles.
At the same time, the code, in the notes to article 171.1, indicates the designations of sizes in monetary terms in parts. For the 3rd and 4th parts, large - 250 thousand rubles, especially large - 1 million rubles.
Special products
With regard to alcohol and cigarettes, the legislator has penalized the circulation of such goods without special marking in the form of excise stamps. In this case, the volume of 100 thousand rubles will already be a large size, and 1 million rubles will be especially large.
If the entrepreneur, knowing the need to label the products of distilleries and tobacco factories in this way, does not do this, he will face the punishment:
- a fine of up to 500 thousand rubles. (800 thousand rubles at a particularly large size);
- Forced labor up to 3 years (up to 6 years, respectively);
- colony, term - up to 3 years with a fine of up to 120 thousand rubles. (6 years and 1 million at an especially large size).
Gambling business
Each person seeks to earn money. Someone goes to work, and someone is engaged in illegal activities with the prospect of receiving huge revenues.
In connection with the law on the prohibition of gambling organizations in many countries, including Russia, not too honest businessmen continued their activities clandestinely or created new places for such entertainments. It is no secret that the income from this type of business is very tangible, although it is quite risky.
Along with the ban, an article appeared that provides for a certain punishment for carrying out such illegal activities - 171.2. This provision addresses the violation in more detail than Article 171 of the Criminal Code. The composition of the crime is almost the same, the specific type of activity is important here.
The disposition (description of the act) says that such entrepreneurial activity is based on the organization and / or implementation of gambling. It is noted that the games can be played using special equipment, the Internet or by using any type of communication. If the businessman organized such entertainment in the permitted gaming zone, but did not receive a license for this, then he also bears criminal liability.
When considering such cases, it could be said that the actions of the entrepreneur fall under the description contained in Article 171, part 1 of the Criminal Code of the Russian Federation, however, the legislator specifically singled out this activity in a separate provision.
Sanctions
The punishment for 172.1 is not much, but more:
- a fine of up to 500 thousand rubles;
- compulsory labor up to 240 hours;
- restriction of liberty up to 4 years, imprisonment - up to 2 years.
Given that there are only two gaming zones in Russia , not everyone can afford to engage in gambling. One zone is located in the Krasnodar Territory ("Azov City"), the second - in Altai ("Siberian Coin").
Punishment for sustainable groups and officials
When a crime is committed by several persons in conspiracy, or if an entrepreneur alone made a profit in a sufficiently large amount, article 171.2 of the Criminal Code of the Russian Federation in Part 2 provides for the following sanctions:
- a fine of up to 1 million rubles .;
- the real term in a correctional institution is up to 4 years with a fine of up to 500 thousand rubles.
If there are especially qualifying signs (organized group, use of official position or a very large amount), the penalty is provided in the form of a fine of up to 1.5 million rubles, as well as of serving a term in prison up to 6 years with a fine of up to 1 million rubles.
In addition, if the act was committed by an official or a person who has a high (or not so) position, the guilty party may be prohibited from further engaging in their activities and holding the relevant position for up to 5 years. This part of the sentence is implemented in conjunction with imprisonment and a fine, although sanctions can simply be in the form of imprisonment in a colony. It should be noted that article 171 of the Criminal Code does not contain such details.
Similar acts
Thus, in relation to entrepreneurs who carry out illegal business (without registration or without a permit for certain types of activities), there are several articles in which the activity itself is divided by type of product or product.
For example, article 172 of the Criminal Code of the Russian Federation separately speaks of punishment for illegal banking activities, and article 222 - for the circulation of weapons committed by a group of persons (in parts 2 and 3).
registration
In some cases, we can talk about the illegal formation (creation) of a legal entity. Unlawful and punishable will be considered only such registration, in which fake documents or dummies were used.
In this case, even if the company carries out legal activities, a violation of the registration rules entails a punishment under article 173.1 of the Criminal Code of the Russian Federation.
Structure
As in any crime, the act provided for in Article 171 of the Criminal Code of the Russian Federation must also have a composition, otherwise actions will not constitute illegal activity.
Considering illegal entrepreneurship from the point of view of the theory of criminal law, it can be noted that the composition is alternative, material and formal and has qualifying and especially qualifying features that are fully described in Article 171 of the Criminal Code of the Russian Federation.
Investigation methodology
The identification of these crimes consists in finding signs that will make it possible to say that the entrepreneur’s activity is unlawfully carried out.
It also has its own nuances. The investigator should find out exactly what facts are worth considering, and when, after all, a business can be considered illegal. In addition, the profit made in the process of illegal business matters.
If this is a large amount (including property) of 1.5 million rubles or more, the crime shall be qualified under paragraph 1 of the 171st article, if in a particularly large amount (of 6 million rubles), article 171 applies , part 2 of the Criminal Code of the Russian Federation.
First you need to decide on what article to qualify the crime, and only then collect evidence based on the content of the indictment.
For example, if an entrepreneur has registration with a tax authority and has permission for any type of activity, but in reality a businessman makes transactions in an adjacent or similar form, then this should be equated to running a business without a license.
Why is this happening? This is due to the fact that each activity has its own rules and requirements, ranging from personnel to the building where the company will be located. Therefore, in order to avoid problems with the law in the implementation of several related types of work (services, production), you need to obtain a license for each.
In addition, if such a permit already exists, but has expired and the entrepreneur continues to engage in this work, this is also considered a violation (article 171 of the Criminal Code of the Russian Federation with comments).
Features of Crime
It is definitely worth noting the position of the Supreme Court regarding entrepreneurs with a license of another entity. According to the Federal Law "On Licensing ..." the permit is not territorially validated, that is, you can organize a business in one region, and get a license in another (if, for example, there are branches in the country).
However, if a region has adopted a normative act that contradicts the laws of the Federation or is not within the competence of these bodies, and a businessman, relying on this act, has received a license, he bears no criminal or administrative responsibility.
Often, together with the qualification of the crime described in Article 171 of the Criminal Code of the Russian Federation, judicial practice also refers to several other forms of illegal acts, such as money laundering (Article 174), the use of someone else's trademark (Article 180) and the like.
Difficulty in qualifying
The decision of the Supreme Court, which was published on November 17, 2004, on the practice related to cases of illegal business, indicates all the difficulties and aspects of qualification and sentencing. So, according to the document, the following difficulties occur:
- definition of the subject;
- the demarcation of adjacent compounds;
- the concept of income - the difference between a one-time transaction and entrepreneurship itself.
With regard to income above, it has already been said that under such should be understood all the money earned, taking into account the expenses incurred. If several persons participated in the case, then the proceeds are taken into account in aggregate.
The difference between one-time revenue generation and business is focus. If a person bought, for example, a mobile phone in China, and then sold it more expensive in Russia, this is not considered entrepreneurship and is not punishable by law.
A transaction that was aimed at making a profit, further investing in the purchase of goods and its implementation is considered the activity of the entrepreneur.
Since article 171 has a blanket character, it is possible to clarify what constitutes entrepreneurship itself in article 2 of the Civil Code of the Russian Federation.
Related structures are spoken of if crimes belong to the same category (in this case, the sphere of economics), and articles in their disposition indicate similar acts.
Related Compounds
As an example, we can consider the provisions of the Criminal Code of the Russian Federation 171 and 159. In both cases, the guilty person commits theft. Only the first article deals specifically with business aimed at profit, which will have a recurring character, and the second article - about obtaining (illegally) property, movable or immovable, including money. At the same time, fraud can be both related to entrepreneurship and may be the result of unlawful actions of an ordinary citizen.
Identification of the culprit
The issue related to the subject of the crime was considered in the decision quite objectively. The message that the punishment should be applied to a specific citizen does not allow ambiguity and interpretation options.
Thus, the criminal liability for illegal activities, including those related to personnel, is borne by the person who in one way or another was appointed on a permanent or temporary basis as the head of the entire enterprise, including branches and representative offices (article 171 of the Criminal Code of the Russian Federation with commentary). In simple terms, only the most important is involved as an accused.
Employees working in this enterprise and carrying out the instructions of its head are not responsible for the illegal activities of the head.
The court's decision
The conviction under Article 171 of the Criminal Code of the Russian Federation must necessarily contain in the descriptive and motivating part the reasons why it was decided that a certain activity of a citizen was entrepreneurial.
In relation to a crime, when as a result not only money was obtained, but also values or property, a sentence is passed where the descriptive and motivating part indicates the reasons for the turnover of such income in favor of the state.
The position of a citizen who is involved as an accused that he did not know about the need to register or obtain a license does not matter: ignorance of the law does not exempt from liability. Moreover, if we talk about permission to carry out certain types of activities, their list is so small that it is simply impossible to get confused. It is unlikely that the manufacturer of blasting, for example, did not know that a license was needed for this.
In addition, any large companies with which the businessman plans to cooperate, when establishing partnerships in any field that is licensed without fail, require this document.