ST 289 of the Criminal Code of the Russian Federation.
The establishment by an official of an organization carrying out entrepreneurial activities, or participation in the management of such an organization personally or through a proxy, contrary to the prohibition established by law, if these acts are related to the provision of benefits and benefits to such an organization or with patronage in another form, is punishable by a fine of up to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to two years, or by deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years with a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months, or by compulsory labor for a term of up to four hundred eighty hours, or by forced labor for a term of up to two years, or by arrest for a term of up to six months, or by imprisonment for a term of up to two years.
Commentary to Art. 289 Criminal Code
1. The objective side of the crime involves two mandatory actions.
2. The first of them is described alternatively: the establishment of an organization carrying out entrepreneurial activities, or participation in the management of such an organization personally or through a proxy. An organization carrying out entrepreneurial activities (legal entity) does not necessarily mean only a commercial organization, since civil legislation allows non-profit organizations to engage in entrepreneurial activities (clause 1 of Article 50 of the Civil Code of the Russian Federation).
The establishment of an organization presupposes its creation, including the form of reorganization. It is not criminally punishable to become a member of an organization during its functioning. Participation in the management of such an organization personally means joining the bodies of a legal entity; management through a proxy is associated with the inclusion in the bodies of a legal entity of a subject subject to the instructions given in any form by the subject of the crime on the activities of such a person. It does not matter whether participation in management is decisive (decisive) in the activities of a legal entity.
3. The second mandatory action is the provision of benefits and benefits to such a legal entity or patronage in another form (for example, in the form of recommendations to other economic entities to enter into contractual relations with this organization, failure to take action for omissions or violations in the activities of such an organization).
4. The establishment of an organization carrying out entrepreneurial activities, or participation in the management of such an organization personally or through a proxy must be prohibited to the subject of the crime by law (see, for example, Article 6 of the Federal Law of May 8, 1994 No. 3-FZ “On the status of member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation", Article 17 of the Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation").
Second commentary to Art. 289 of the Criminal Code of the Russian Federation
1. Civil servants are prohibited from engaging in entrepreneurial activities personally or through proxies, or from being a member of the management body of a commercial organization, unless otherwise provided by federal law (Article 7 of the Federal Law of July 27, 2004 “On the State Civil Service of the Russian Federation”). A similar ban was established by the Federal Law “On Municipal Service in the Russian Federation” of March 2, 2007 (Article 14).
2. The objective side of the crime under analysis may consist of any of the following two actions:
1) establishment of an organization carrying out entrepreneurial activities, with the provision of benefits and advantages to such an organization or with patronage in another form;
2) participation in the management of such an organization personally or through a proxy, also with the provision of benefits and advantages to this organization or with the provision of patronage in another form.
3. The establishment of an organization carrying out entrepreneurial activities means its creation: the conclusion of a constituent agreement, approval of the charter, state registration of a legal entity. The culprit may be the sole founder or one of the co-founders of the organization being created.
4. Participation in the management of such an organization personally or through a proxy means the personal or through a proxy participation of an official in the collegial management body of the organization as its leader or member (board of directors, board, etc.).
5. The described actions themselves (establishment of a commercial organization, as well as participation in its management), although prohibited for officials, are not criminally punishable. They acquire a criminal character only due to the fact that an official, abusing his official powers, provides (or seeks to provide) the organization created or led by him with various benefits and advantages, or provides it with patronage in another form and thereby puts this organization in a privileged position compared to other business entities.
Benefits and advantages can be expressed in the provision of tax breaks, preferential government loans, in the unhindered issuance of a license, in the priority allocation of goods, raw materials or materials, etc. Providing patronage in another form can be expressed, for example, in promoting the sale of manufactured products, in setting inflated prices for them, in exempting the organization from certain forms of state or departmental control, etc.
6. This crime is recognized as completed from the moment the official commits specific actions to provide benefits and advantages or provide patronage in another form to an organization created or led by the offender, carrying out entrepreneurial activities.
5. The subjective side is characterized by direct intent. A mandatory feature of the subjective side is a selfish motive, which, although not verbally indicated in the disposition, clearly follows from the economic essence of this crime.
6. The subject of the crime is special: an official. Qualification of his actions under Art. 289 of the Criminal Code does not exclude liability for crimes in the field of entrepreneurship if, during the implementation of entrepreneurial activities of an organization created or led by an official, the acts provided for in Art. 171-174.1 of the Criminal Code.
ILLEGAL BUSINESS ACTIVITY
The concept of illegal business activity
To define the concept of illegal business activity, let us turn, first of all, to the concept of business activity enshrined in Russian legislation. The domestic legislator understands entrepreneurial activity in accordance with paragraph. 3 p. 1 art. 2 of the Civil Code of the Russian Federation is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law. One of the most important features of entrepreneurial activity in this definition is the state registration of business entities, which, unlike other essential features (risky nature of activity, systematic profit-making, etc.), is formal in nature. Thus, illegal business activity will be understood as activity carried out in the absence or in violation of the rules of state registration. It is the formal sign, i.e. the fact of state registration will play a key role in determining the status of legality of business activity, which is reflected in criminal and administrative law. Consequently, in order to engage in legal business activities, it is necessary to register a legal entity in the prescribed manner or acquire the status of an individual entrepreneur, and also, if necessary, obtain a license to carry out licensed activities. It is necessary to point out that registration is not a right, but an obligation of a person engaged in business activities. This is also indicated by paragraph 1 of Art. 23 of the Civil Code of the Russian Federation, which states that a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur, and clause 1 of Art. 51 of the Civil Code of the Russian Federation, indicating that a legal entity is subject to state registration with an authorized state body in the manner prescribed by the law on state registration of legal entities. In accordance with paragraph 2 of Art. 11 of the Federal Law of 08.08.2001 N 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”, the moment of state registration is the entry by the registering authority into the relevant state register. As for the need to obtain a license, the list of activities subject to licensing is established in Art. 12 of the Federal Law of May 4, 2011 N 99-FZ “On licensing of certain types of activities.” Based on this understanding of the legality of entrepreneurial activity, such activities as drug trafficking, the organization of brothels, the creation of underground casinos, the slave trade, etc., are not entrepreneurial activities, although they are aimed at systematically making a profit at your own peril and risk, since or other type of business activity must initially be permitted by the legal system and, therefore, be subject to registration or licensing. The slave trade, for example, is prohibited by law and, accordingly, is not subject to either registration or licensing. In case of conducting illegal business activities, i.e. conducting activities in the absence of state registration or license, both administrative and criminal liability are established for it.
Administrative liability for illegal business activities
Administrative liability for illegal business activities is established in Chapter 14 of the Code of Administrative Offenses, which indicates which acts in business activities are illegal from the point of view of the legislator. The basic compositions are contained in Art. 14.1 of the Administrative Code, these include: 1) entrepreneurial activity without state registration as a legal entity or individual entrepreneur; 2) entrepreneurial activity without a special permit or license if they are required; 3) carrying out business activities in violation, incl. and rough, requirements and conditions provided for by a special permit or license. At the same time, to ensure that different interpretations of the concepts “violation” or “gross violation” are inadmissible, the definition of these concepts is established by the Government of the Russian Federation in relation to each specific licensed type of activity; additional explanations on the interpretation of this concept were also given by the Supreme Court of the Russian Federation. In particular, paragraph 17 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated October 24, 2006 “On some issues that arise for the courts when applying the Special Part of the Code of the Russian Federation on Administrative Offenses” states that carrying out business activities in violation of the conditions provided for by a special permit or license, is the implementation by a person of a certain type of entrepreneurial activity on the basis of a special permit (license) without fulfilling the licensing requirements and conditions established by the provisions on licensing specific types of activities, the fulfillment of which by the licensee is mandatory when carrying out such activities. One specific example of violation of such requirements or conditions provided for by a special permit or license is, in particular, failure to comply with legal requirements when organizing passenger transportation. Thus, in Resolution No. 303-AD16-6572 dated July 20, 2016 in case No. A73-11871/2015, the Supreme Court of the Russian Federation considered the application of the department of the Federal Service for Supervision of Transport to bring an individual entrepreneur to administrative liability under Part 4 of Art. 14.1 Code of Administrative Offenses of the Russian Federation. This body carried out an inspection following the results of an accident in which passengers of a vehicle owned by an entrepreneur were killed and injured; the results of the inspection revealed gross violations of licensing requirements and conditions, in particular: - non-compliance with the work and rest regime for drivers established by the legislation of the Russian Federation; — violation of the requirements for carrying out maintenance and repair standards for buses sent on intercity routes; — failure of drivers to undergo mandatory preliminary medical examinations upon hiring. The Supreme Court of the Russian Federation indicated that the lower courts correctly established a violation of the requirements of Art. 20 Federal Law of December 10, 1995 N 196-FZ “On Road Safety”, which entailed the consequences specified in Part 11 of Art. 19 Federal Law dated 04.05.2011 N 99-FZ “On licensing of certain types of activities”, therefore, the entrepreneur is subject to administrative liability under Part 4 of Art. 14.1 Code of Administrative Offenses of the Russian Federation. Depending on the severity of the offense committed, the subject structure, as well as the elements of the offense, the size of the sanctions varies: from an administrative fine in the amount of five hundred rubles to an administrative fine in the amount of two hundred thousand rubles and administrative suspension of activities for up to ninety days. In accordance with paragraph 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated October 24, 2006 N 18 “On some issues that arise for the courts when applying the Special Part of the Code of the Russian Federation on Administrative Offenses,” subjects of an administrative offense can be citizens, officials and legal entities, and individual entrepreneurs. At the same time, as stated in paragraph 13 of this Resolution, when bringing a person to administrative responsibility, it is necessary to check whether the actions of a particular person constitute an administrative offense and whether they contain the signs of entrepreneurial activity specified in paragraph 1 of Art. 2 of the Civil Code of the Russian Federation, i.e. This activity must be permanent, carried out at your own peril and risk, and aimed at systematically generating profit. Individual cases of selling goods, performing work or providing services, provided that they were not aimed at systematically making a profit, do not constitute an administrative offense. When proving the fact of engaging in activities aimed at making a profit, statements of persons, receipts for receipt of funds, bank account statements of a person brought to administrative responsibility, acts of performance of work and provision of services, advertising materials, concluded lease agreements for premises, may be used as evidence. where the work was performed and services were provided, etc. It is also worth paying attention to the fact that in relation to a number of types of business activities, licensing has been replaced by another type of control - membership in an SRO (self-regulatory organization), which is mandatory and does not allow the performance of work or the provision of services in the absence of this membership. In this case, the mandatory membership in the SRO is legal and complies with the Constitution of the Russian Federation, as indicated by the Constitutional Court of the Russian Federation in its Resolution No. 12-P dated December 19, 2005 “In the case of verifying the constitutionality of paragraph eight of paragraph 1 of Article 20 of the Federal Law “On Insolvency (Bankruptcy”) )" in connection with the complaint of citizen A.G. Mezhentseva". In general, Art. 14.1 of the Code of Administrative Offenses establishes only general rules that make it possible to bring an offender to administrative responsibility. Chapter 14 also provides for special rules for bringing to administrative responsibility, which take precedence over the general ones. So, for example, if a person is engaged in entrepreneurial activity in the management of apartment buildings without a license, then his act should be qualified under Art. 14.1.3 of the Code of Administrative Offenses (carrying out business activities in the management of apartment buildings without a license), and not part 2 of Art. 14.1 of the Code of Administrative Offenses (carrying out business activities without a special permit (license), if such a permit (such license) is required (mandatory)). This is exactly the position that the RF Armed Forces adheres to. In particular, in paragraph 18 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated October 24, 2006 “On some questions that arise for the courts when applying the Special Part of the Code of the Russian Federation on Administrative Offences,” the Armed Forces of the Russian Federation explains that in the event that administrative responsibility for carrying out business activities established without special permission (license) or in violation of the conditions stipulated therein, in addition to the general norms in Part 2 or Part 3 of Art. 14.1 of the Code of Administrative Offences, and other articles of the Code of Administrative Offenses of the Russian Federation, then the actions of a person are qualified according to a special norm provided for by the Code of Administrative Offenses of the Russian Federation. As an example, the RF Armed Forces cite a situation in which a person’s engaging in private medical practice without a special permit (license) for this type of activity is qualified under Part 1 of Art. 6.2 of the Code of Administrative Offenses (practicing traditional medicine without obtaining permission established by law), and not under Part 2 of Art. 14.1 of the Code of Administrative Offenses (carrying out business activities without a special permit (license), if such a permit (such license) is required (mandatory)).
Criminal liability for illegal business activities
Criminal liability for illegal business activities is established in Art. 171 of the Criminal Code of the Russian Federation, which states that carrying out business activities without registration or without a license or without accreditation in the national accreditation system or accreditation in the field of technical inspection of vehicles is subject to criminal liability in cases where such a license, accreditation in the national accreditation system or accreditation in in the field of technical inspection of vehicles are mandatory if this act caused major damage to citizens, organizations or the state or is associated with the extraction of income on a large scale. Thus, criminal liability instead of administrative liability occurs if the committed act, by its nature, is of a greater social danger than a formal misconduct on the part of the business entity: i.e. in the event that, in violation of the requirements established by law, income is extracted on a large scale or damage is caused to citizens, organizations or the state. In accordance with the note to Art. 170.2 of the Criminal Code of the Russian Federation, large income and large damage are recognized as damage, income or damage in an amount exceeding two million two hundred fifty thousand rubles. Paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 N 23 “On judicial practice in cases of illegal business” indicates that such income should be understood as revenue for the entire period of illegal business activity without deducting expenses incurred by the person associated with the implementation illegal business activities. This crime is classified under Part 1 of Art. 171 of the Criminal Code of the Russian Federation and entails 3 possible types of liability: a fine in the amount of up to 300 thousand rubles or in the amount of the wages or income of the convicted person for a period of up to two years; compulsory work for up to 480 hours; arrest for up to 6 months. Part 2 Art. 171 of the Criminal Code of the Russian Federation contains qualifying features of this crime: commission by an organized group and extraction of income on an especially large scale. In accordance with the note to Art. 170.2 of the Criminal Code of the Russian Federation, income on an especially large scale is income exceeding nine million rubles. When committing a crime under Part 2 of Art. 171 of the Criminal Code of the Russian Federation, the legislator establishes the following types of liability: a fine in the amount of 100 to 500 thousand rubles or in the amount of wages or other income of the convicted person for a period of one to three years; forced labor for up to five years; imprisonment for a term of up to five years with a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months, or without it. The Supreme Court of the Russian Federation in paragraph 13 of Resolution No. 23 of November 18, 2004 “On judicial practice in cases of illegal business” indicated that when calculating the amount of income received by an organized group of persons while carrying out illegal business activities, the courts should proceed from the total amount of income, extracted by all its participants. In accordance with Art. 19 of the Criminal Code of the Russian Federation, only a sane individual who has reached the required age in accordance with the Criminal Code of the Russian Federation is subject to criminal liability. In the case of Art. 171 of the Criminal Code of the Russian Federation is 16 years according to the provisions of Art. 20 of the Criminal Code of the Russian Federation. Thus, the subject of the crime, based on the provisions of Art. Art. 19 - 20 of the Criminal Code of the Russian Federation in accordance with the disposition of Art. 171 of the Criminal Code of the Russian Federation can be: 1) a person who has the status of an individual entrepreneur; 2) a person carrying out entrepreneurial activities without state registration as an individual entrepreneur; 3) a person who has been entrusted with the responsibilities of managing the organization, or a person who actually performs the duties or functions of the head of the organization - in the case of illegal business activities carried out by a legal entity. A similar position with regard to the subject element of the crime, in particular, the head or actual head of the organization, is reflected in paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 N 23 “On judicial practice in cases of illegal entrepreneurship.” Based on the meaning of Art. 171 of the Criminal Code of the Russian Federation, illegal business activity can be expressed in four forms: 1) business activity conducted without state registration; 2) business activities carried out in violation of the rules of state registration; 3) business activities carried out in the absence of a special permit (license, accreditation); 4) business activities carried out in violation of licensing or accreditation conditions. Let's look at these forms in more detail. In the first case, in accordance with paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 N 23 “On judicial practice in cases of illegal entrepreneurship,” the implementation of business activities without registration takes place in the following cases: a) there is no record of the creation of such a legal entity or there is no record of an individual acquiring the status of an individual entrepreneur; b) the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs contains an entry on the liquidation of a legal entity or termination of the activities of an individual as an individual entrepreneur. In the second case, entrepreneurial activity is carried out by an entity that knew that violations were committed during registration, which are grounds for declaring this registration invalid. For example, the information required for registration was not provided in full, or documents containing deliberately false or distorted information were submitted to the competent authority, which resulted in unfounded registration of the entity (paragraph 2, paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 18 .2004 N 23 “On judicial practice in cases of illegal entrepreneurship”). In the third case, the absence of a license or accreditation in the national system of accreditation or accreditation in the field of technical inspection of vehicles, i.e., as defined by clause 2 of Art. 3 of the Federal Law of May 4, 2011 N 99-FZ “On licensing of certain types of activities” (hereinafter referred to as the Law on Licensing), a special permit for the right to carry out a specific type of activity. In this case, the presence of a license is confirmed by an entry in the license register. In accordance with Part 4 of Art. 9 of the Law on Licensing, the license is valid for an indefinite period, however, Art. 20 of the Licensing Law indicates that the license may be suspended, the license may be cancelled, and also that the license may be terminated due to the termination of the type of activity of the licensee for which the license was granted. Thus, in the absence of a license initially or in the event that an already issued license does not have legal force, carrying out business activities will be illegal. At the same time, in accordance with paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 N 23 “On judicial practice in cases of illegal entrepreneurship” in the event that federal legislation from the list of activities the implementation of which is permitted only on the basis special permit (license), the corresponding type of activity is excluded, there is no corpus delicti in the actions of the person who was engaged in this type of business activity. The features and procedure for accreditation are regulated by the Federal Law of December 28, 2013 N 412-FZ “On accreditation in the national accreditation system” (hereinafter referred to as the Accreditation Law). Accreditation in the national accreditation system means confirmation by the national accreditation body of the compliance of a legal entity or individual entrepreneur with accreditation criteria, which is official evidence of the competence of a legal entity or individual entrepreneur to carry out activities in a certain area of accreditation (Clause 1, Article 4 of the Accreditation Law). In the fourth case, a situation arises when a license or accreditation is available, but the conditions for its provision are violated: the conditions for the products are not met, the technical requirements for carrying out a particular activity are not met, etc. Considering the fact that entrepreneurship is the driving force of a market economy, the legislator makes a number of concessions in terms of attracting citizens to appropriate types of punishment within the framework of criminal or administrative liability. So, in accordance with Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation, a person who has committed a crime under Part 1 of Art. for the first time. 171 of the Criminal Code of the Russian Federation, is exempt from criminal liability if it compensated for the damage caused to a citizen, organization or state as a result of the commission of a crime, and transferred to the federal budget monetary compensation in the amount of twice the amount of damage caused, or transferred to the federal budget the income received as a result of the commission of a crime. crime, and monetary compensation in the amount of twice the amount of income received as a result of the crime, or transferred to the federal budget an amount of money equivalent to the amount of losses that were avoided as a result of the crime, and monetary compensation in the amount of double the amount of losses that were avoided in as a result of the commission of a crime, or transferred to the federal budget an amount of money equivalent to the amount of the committed act provided for by the relevant article of the Special Part of this Code, and monetary compensation in the double amount of this amount. At the same time, in accordance with paragraph 15 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 27, 2013 N 19 “On the application by courts of legislation regulating the grounds and procedure for exemption from criminal liability,” in order to terminate criminal prosecution, compensation for damage and the transfer of income and monetary compensation to the federal budget must be carried out in full until the court is removed to the deliberation room. The very amount of damage subject to compensation is determined on the basis of primary accounting documents, civil contracts, statements (certificates) of current accounts, information on transactions using electronic means of payment, etc. In relation to a person or group of persons who have committed a crime for the first time under Part 2 of Art. 171 of the Criminal Code of the Russian Federation, exemption from criminal liability on the basis of Part 2 of Art. 76.1 of the Criminal Code of the Russian Federation is not provided for. There have also been some mitigations in relation to persons engaged in certain activities carried out on an individual basis, for hire and aimed at generating income, but not registered as individual entrepreneurs. Thus, in the draft of the Russian Ministry of Finance “Main directions of tax policy for 2022 and the planning period of 2022 and 2019” it was proposed to introduce the status of self-employed citizens in relation to such persons. Introduce voluntary notification of the activities they carry out, exempt the income received from such activities from personal income tax and from paying obligatory payments to state extra-budgetary funds, and also exempt them from liability for conducting illegal business activities for a period until December 31, 2018. The Federal Tax Service began to keep records of such citizens who provide services to individuals for personal, household and (or) other auxiliary persons based on the notification forms they submit, approved by the Order of the Federal Tax Service of the Russian Federation and registered with the Ministry of Justice of the Russian Federation. Types of activities not subject to taxation are specified in paragraph 70 of Art. 217 Tax Code of the Russian Federation. It is assumed that the reason for this mitigation lies in the political plane and is aimed at reducing informal employment of the economically active population in conditions of strict legal regulation by the state (https://www.minfin.ru). In general, it seems that a certain balance of interests must be maintained in relation to illegal business activities. On the one hand, illegal business should be pursued by law enforcement agencies, since it can be potentially dangerous to society, but, on the other hand, legal regulation of registration, licensing, and taxation issues should not be excessive and burdensome.
The article material is taken from open sources
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