Stipulated in Art. 171 of the Criminal Code of the Russian Federation, the offense involves an infringement on the procedure for the work of economic entities established by law. The norm defines the mandatory conditions under which criminal liability ensues. In their absence, the perpetrators are only facing administrative punishment.
The composition of Art. 171 of the Criminal Code
The norm establishes a punishment for the functioning of an economic entity without a license, if it is mandatory, and without registration. Mandatory conditions for bringing to justice are:
- Causing serious harm to organizations, the state or citizens.
- Extraction of a large amount of profit.
For imputation of punishment under Art. 171 of the Criminal Code, it is necessary to fulfill at least one of these conditions. In this case, the perpetrator faces:
- A fine of up to 300 thousand rubles. or in the amount of income for a period of up to 2 years.
- Up to six months of arrest.
- Mandatory work up to 480 hours
Aggravating circumstances
The norm provides for 2 grounds on which the punishment for illegal business is toughened. Art. 171 of the Criminal Code of the Russian Federation establishes the commission of an act:
- Organized group.
- Accompanied by the extraction of income in the amount considered to be especially large.
In these cases, the perpetrators face:
- Fine in the amount of 100-500 thousand rubles. or equal to income for 1-3 years.
- Up to 5 years of forced labor.
- Imprisonment for the same term.
By the last sentence, the court may additionally establish a fine of up to 80 thousand rubles. or equal to the income of the convicted for six months.
Art. 171 of the Criminal Code with comments
The concept of the subject of encroachment is disclosed in the explanations to Art. 169 of the code. When analyzing the signs of an act, the recommendations of the Plenum of the Armed Forces, data on the application of Art. 171 of the Criminal Code. Judicial practice in accordance with the norm in question takes into account the peculiarities of the proceedings related to the unlawful work of economic entities and the laundering (legalization) of income and property acquired illegally.
Nuance
Act provided for by Article 171 of the Criminal Code, is characterized by five forms. All actions will be criminalized if one of the conditions given in the first part is observed. Major damage and income are specified in the clarifications to article 169 of the code. As a profit when applying the provisions of Article 171 of the Criminal Code should understand the proceeds from the sale of services, products and works during the unlawful functioning of the enterprise without deducting expenses incurred by the guilty. When determining the income derived by an organized group, it is necessary to proceed from the amount received by all participants.
Lack of registration
The VS clarified that if the registry does not contain a record of the establishment of a legal entity or the acquisition of individual IP status by an individual, but the entity carries out economic and financial operations, then its 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 mandatory nature is established by law. This procedure is the legal recognition of the legal form of the entity. It can act as a peasant farm, individual entrepreneur, legal entity (commercial enterprise).
Exceptions
If the perpetrators carry out activities prohibited by law that cannot be registered, the liability is not provided for under Art. 171, but by other standards. For example, the unlawful manufacture of weapons, explosive devices, ammunition, components for them entails punishment under article 223. No punishment under art. 171 of the Criminal Code for persons who are not registered as IPs, who have purchased housing for personal needs or inherited real estate (under a gift agreement) and, having provided the object for rent, received income, in a large or especially large amount, including. For such entities, liability may arise under Article 198 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, if, having a certificate for one type of work, performs another or in another place, or in a different legal form. Violations of the rules of state registration are also considered cases when, when registering obviously for the guilty person, actions were taken that gave reason to recognize the procedure as invalid. For example, the subject submitted an incomplete package of documents. Continuation of work if the certificate has expired will be considered a violation of the rules. Submission to the authorized body of documentation in which deliberately false information is present indicates that the registration was obtained by fraudulent means, and the state structure was misled by papers, the falsification of which was revealed later.
Lack of license
To conduct certain types of activities, legislation provides for the obligation of an entity to obtain permission. The licensing procedure is defined in the Federal Law No. 128. The types of activities for which permission is required include those in which it is likely to harm the rights, interests, health, morale of citizens, security and defense of the state. The actions of an entity providing medical services or carrying out pharmaceutical practice without an appropriate license, if they have caused damage to health or the death of a citizen, are qualified under Article 235 of the Code. If the indicated 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, individuals or organizations, the liability arises under Art. 171.
Permission Considerations
Licenses are issued for each type of work / service to registered entities. The authorities authorized to issue permits may be local or regional authorities. The legislation establishes general licensing rules. At the same time, specific types of work are indicated for which permission is issued exclusively at the federal level. Such activities, in particular, include the arms trade, all operations with precious metals and stones, psychotropic / narcotic compounds, and so on. Along with this, the types of work are determined, the permit for the production of which can be provided by regional authorized bodies. These include medical, real estate, veterinary activities, the provision of services by gas stations, etc.
Administrative responsibility
As mentioned above, in the absence of at least one prerequisite for the perpetrator, criminal punishment is not applied. When carrying out illegal business without state registration or a license, or in violation of the requirements established in a special permit, without causing serious harm, liability arises under Art. 14.1 Administrative Code. The director of the legal entity or individual entrepreneur, who has submitted documentation to the authorized body containing knowingly false information, in this case faces a penalty under Art. 14.25 (Part 4) of the Code of Administrative Offenses.
Subjective part
The act is committed in the presence of direct intent. Moreover, the motives of the guilty are always self-serving. The subject of the crime is a special person. As it is the head of the organization or individual entrepreneur, evading from obtaining a license or state registration. It should be borne in mind that citizens, except for the director of the enterprise, who are in labor relations with a legal entity or individual entrepreneur, working with violations of the law, are not liable for the norm under consideration if they performed the duties established by the contract.
Qualifying signs
Part two of the article under consideration provides two aggravating circumstances. An explanation of the concept of an organized group is presented in article 35, part 3 of the Criminal Code. The amount of damage is considered especially large if its amount is more than 6 million rubles. When calculating the income received in an unlawful way by a group, it is necessary to proceed from the aggregate amount extracted by all participants. However, the costs incurred by them are not taken into account.
Set of crimes
If, within the framework of the enterprise’s work, actions have been taken containing signs of acts provided for in other articles, liability shall be incurred for all identified episodes. In particular, in the production, storage, acquisition, transportation for the purpose of subsequent sale or sale of unlabelled products by an entity that does not have a state registration / license, the penalty is charged under the considered norm in conjunction with Art. 171.1 of the Criminal Code. Similarly, a violation of the procedure for the manufacture and use of state-certified assay marks (Article 181) or the storage, production, sale of goods, production of works, provision of services that do not meet safety requirements (Article 238) is qualified.
Difficulties in the differentiation of acts
In Art. 171.2 of the Criminal Code of the Russian Federation establishes liability for the unlawful conduct and organization of gambling outside the zones established for this. 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 Article 2 of the Civil Code (paragraph 1). It follows that if such actions are not aimed at the systematic generation of income, but involve the execution of one-time transactions, they do not constitute a corpus delicti 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 revealed, the results of which yield a profit in the amount that does not reach a large one, the guilty person shall be held liable under articles 171 (part 1) and 33 (part 3), if his intent was aimed at generating more income.